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CHANDRA KIRAN SINGH versus STATE OF U.P. THRU' SECY. DEPTT. OF COOP. SOCIETY & ORS.

High Court of Judicature at Allahabad

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Chandra Kiran Singh v. State Of U.P. Thru' Secy. Deptt. Of Coop. Society & Ors. - WRIT - C No. 50920 of 2004 [2006] RD-AH 769 (12 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 37

Civil Misc. Writ Petition No.50920 of 2004

Chandra Kiran Singh VersusStae of U.P. and others

****

Hon. R.K. Agrawal, J.

Hon. (Mrs.) Saroj Bala, J.

By virtue of the present writ petition, under Article 226 of the Constitution of India, the petitioner seeks a writ, order of direction in the nature of certiorari quashing the impugned order dated 25.11.2004 (Annexure-9 to the writ petition). The petitioner also seeks a writ, order or direction in the nature of mandamus commanding  the respondents to hold  the election on the basis  of the last voter list (Annexure-6 to the writ petition) and according to sub-rule  (2)(1) of Rule 444-B of U.P. Cooperative Societies  Rules, 1968.

Necessary facts giving rise to the writ petition are these:

On 18.8.2004 a notification for the election of members and   Chairman of  Dugdh Utpadak Sahkari Sangh Limited, Bulandshahar was made in ''Dainik Jagran' newspaper by Kshetriya Dugdhashala Vikas Adhikari, Dugdhshala Vikas, U.P., Meerut and Saharanpur Mandal (Annexure-1 to the writ petition). According to the notification the election of the members and Chairman was scheduled to be held on 24.9.2004 and 25.9.2004 in accordance with sub-section (3) of Section 29 of the U.P. Cooperative Societies Act, 1965 and subject to the provisions of  Rule  440(4) of 7th amended Regulation 1977. The aforesaid notification also invited objections with regard to the number of total members and number of reserved category. Some of the members of the Milk Produce Cooperative Unit Limited, Bulandshahar submitted objections and a final decision was taken vide notification dated 31.8.2004. The respondent no. 2 postponed the election of members and Chairman for a period of two months vide order dated 10.9.2004 (Annexure-3 to the writ petition). The declaration of election programme was made on 10.9.2004 by Election Officer (Annexure-4 to the writ petition). The nomination forms were submitted by the candidates and after enquiry election symbols were allotted to them whose nomination forms were found to be valid (Annexure-5 to the writ petition). The petitioner submitted nomination forms for the election of members from Jahangirabad Unchagaon (general seat) and was elected along with eight members of other areas (Annexure-6 to the writ petition). According to the petitioner the Chairman of Milk Produce Cooperative Unit Limited is to be elected from amongst the elected members of the committee of management in pursuance of sub-rule  (3) of Rule 444-B of the U.P. Cooperative Societies Rules. The petitioner states that the list of nine elected members (Annexure-8 to the writ petition) is the last voter list for the election of the Chairman. The petitioner submitted nomination form for the election of the Chairman on 25.11.2004. The respondent no.  4 made a declaration about valid nomination forms and allotted respective symbol to the petitioner and other candidates (Annexure-7 to the writ petition). The election of the Chairman was to be held on 25.11.2004 between 2 p.m. to 3 p.m. When the election was not held within the said time the petitioner made an application before the respondent no. 4 (Annexure-8 to the writ petition). The application of the petitioner was sent by the respondent no. 4 with a letter to the respondent no. 2. The impugned order was passed by the respondent no. 2 without giving  thoughtful consideration. According to the petitioner the respondent no. 2 has illegally nominated one Novil Kumar as representative of the State  for the committee of management of Milk Produce  Cooperative Unit Limited, Bulandshahar in utter disregard of the  mandatory provisions of  Sub-section (2-A) of Section 34  of the U.P. Cooperative  Societies Act, 1965. The contention of the petitioner is that the nominated member is a transporter and is not a highly qualified person as envisaged under the proviso to Section 34 (2-A) of the U.P. Cooperative Societies Act, 1965. It is alleged that the mini trucks of the nominated member being attached with the Cooperative Dairy Parag situate at Partapur, district Meerut, he was in a position to pressurize the respondent no. 2.

On behalf of the respondent no. 2 counter affidavit of Sri M.K. Shukla, Dugdhshala Vikas Adhikari, Allahabad, has been filed. According to the respondent the elections of the member of the committee of management and Chairman of the Milk Produce Cooperative Unit Ltd. were postponed for a period of two months on account of by-elections of Legislative Assembly and Parliament and vide order dated 10.9.2004, 24 and 25  November 2004 were fixed for the election of members and Chairman of the Milk Produce Cooperative Unit Limited. According to the respondent the elected members had filed nomination forms for the election of Chairman. The respondent states that the list of the elected candidates of the committee of management issued by the Election Officer on 24.11.2004 cannot be said to be a voter list notified for the election of the Chairman. According to the respondent  the petitioner had made an application to the Election Officer stating  that  under Sub-rule  (2-A) of Rule 444-B of the U.P. Cooperative Societies Rules, 1968 the Director/Members of the Milk Produce  Cooperative Unit Limited can only participate in the election of the Chairman. The contention of the respondent is that the provisions of Sub-rule (2) of Rule 444-B of the U.P. Cooperative Societies Rules,1968 do not prohibit the nominated members from participating in the election of the Chairman. The respondent states that the State Government is empowered to nominate two members for the committee of management under the provisions of Section 34 of the U.P. Cooperative Societies Act, 1965 out of which one would be a government servant and the nominated government servant shall have no right to vote at the election of office bearers of the Society. The respondent states that Sri Novil Kumar is a person having special knowledge in relation to milk production and milk business and is conversant with day today problems of village milk producers.

The respondent no. 5 has stated in his counter affidavit that he is the Chairman of Primary Milk Producers Cooperative Society affiliated to the concerned central society. The respondent was nominated as member of Dugdha Utpadak Sahkari Sangh Limited, Bulandshahar vide order dated 24.11.2004. According to the respondent he being the nominated non- government servant had a right to vote in the election of office bearers   of the society.

We have heard Sri Shashi Nandan, learned senior counsel assisted by Sri Dheeraj Singh Bohra, Advocate, appearing on behalf of the petitioner and Sri Vinod Sinha, appearing on behalf of the respondent  and learned Standing Counsel and have scrutinized the record of the writ petition.

Admittedly, the petitioner was elected as a member of the committee of management of Dugdh Utpadak Sahkari Sangh Limited, Bulandshahar in the election held on 24.11.2004. The petitioner submitted nomination form for the election of the Chairman scheduled to be held on 25.11.2004.  On 25.11.2004 an application was made   by the petitioner to the Election Officer, Milk Produce Cooperative Unit Ltd., Bulandshahar stating that the participation of the nominated members of the State Government in the election of the Chairman is against Sub-rule (2) of Rule 444-B of the U.P. Cooperative Societies Rules, 1968. The application/objection made by the petitioner was disposed of by the impugned order dated 25.11.2004 (Annexure-9 to the writ petition) of the Milk Commissioner, Dugdhshala Vikas U.P., Lucknow. The authority concerned was of the view that under Section 34 of the U.P. Cooperative Societies Act, 1965 the non government servant nominated members have a right to vote in the election of office bearers of the Society but the nominated member cannot be a candidate for election of the office bearers of the Society. The respondent no. 5 is a non-government servant nominated member of the committee of management of the Society concerned.

The learned counsel for the petitioner argued that under section 34 (2-A) if the U.P. Cooperative Societies Act, 1965 the right of State Government to nominate members of the committee of management in the Milk Cooperative Societies is restricted to 1/4th of the total number of members of the committee of management and the nominated members shall be from amongst the representatives of financial institution, government servant, experts Dairying or Chairman of the Primary Milk Producers Cooperative Societies affiliated to the concerned central society. The learned counsel submitted that the respondent no. 5 does not fulfill the criteria prescribed in the said provision. The learned counsel for the petitioner urged tat   the respondent no. 5 is a transporter and his mini trucks are attached with the Cooperative Dairy Parag situate at Partapur district Meerut. The learned counsel submitted that the Chairman of the Milk Produce Cooperative Unit Limited, Bulandshahar is to be elected from amongst the elected members of the committee of management as contemplated under Sub-section (3) of Rule 444-B of the U.P. Cooperative Societies Rules, 1968.

The learned counsel for the respondents submitted that the respondent no. 5 being the Chairman of Primary Milk Producers Cooperative Society Sherpur affiliated to the concerned central society was eligible to be nominated by the State Government as a member of committee of management of the Milk Produce Cooperative Unit Limited, Bulandshahar.

The committee of management as defined under section 2 (10(e) of the U.P. Cooperative Societies Act means the committee of management of a cooperative society by whatever name called to which the management of the affairs of the society is entrusted under section 29. The committee of management of a society is  to be constituted in accordance with the provisions of  Section 29 of the Act, Rules and byelaws. Under Section 34 of the U.P. Cooperative Societies Act, 1965 the State Government shall have a right to nominate on the committee of management of such society not more than two persons one of whom shall be a government servant, however, that government servant shall not vote at an election of office bearers of the society. Section 34 (2-A) provides that notwithstanding   anything contained in Sub-section (1) (2) the right of the State Government to nominate members of the committee of management in the Milk Produce Cooperative Societies shall be restricted to 1/4th of the total number of members of the committee of management excluding the Chairman. The proviso appended to sub-section (2-A) provides that in the case of Milk Cooperative Society which is a central society (other than the Pradeshik Cooperative Dairy Federation) the member nominated by the State Government shall be from amongst the representatives of  the financial  institution, government servant, experts in Dairying  or Chairman of the Primary Milk Producers Cooperative Societies affiliated  to the concerned central  society.

Sub-rule  (3)(i) of Rule 444-B of the U.P. Cooperative Societies Rules, 1965 provides that the elected member of the committee of management shall elect the chairman and other office bearers from amongst themselves.

The respondent no. 5 a non-government servant and the Chairman of Primary Milk Producers Cooperative Society affiliated to the concerned central society was nominated by the State Government to be a member   of the committee of management of Milk Produce Cooperative Unit Limited. The respondent no. 5 being the chairman of the Primary Milk Producers Cooperative Society his nomination by the State Government as a member of the society concerned cannot be held to be illegal. The nominated member who is not a government servant has not been precluded from exercising the right to vote at an election of an office bearers of the society. The election of the Chairman,. Vice Chairman and other office bearers has to be made from amongst the elected members of the committee of management. The legislature has specifically excluded the nominated member who is a government servant from the right to vote in the election of office bearers of the society. The provisions of Section 34 do not place any restriction or rider on the right of a nominated member who is not a government servant to exercise the right to vote in the election of office bearers of the society. Of course, in view of the provisions of Sub-rule (3)(i) of Rule 444-B the nominated non-government servant member cannot be a candidate for the election of Chairman, Vice Chairman and other office bearers. The election of Chairman, Vice Chairman and other office bearers has to be made from the elected members of the committee of management. The nominated member who is not a government servant has no right to be elected as Chairman, Vice Chairman or any other office bearers though he has a right to elect. The State legislature having specifically debarred the nominated member who is a government servant from the right to vote, the non-government servant nominated member shall be deemed to have a right of voting at the election of the Chairman. The voting right of a nominated ember who is not a government servant is a statutory right. The exclusion of nominated member who is a government servant from voting right is construed to mean that the nominated member who is not a government servant has a right to participate in the election of office bearers of the society. We are, therefore, of the opinion that the respondent no. 2 committed no error or illegality in coming to the conclusion that the respondent no. 5 has a right to elect but no right to be elected to any post of the society.

The writ petition is devoid of substance and is accordingly dismissed. There shall be no order as to costs.

D/-12.1.2006

Mahmood


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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