Format No. 7
(Chapter X, Rule 23)
IN
THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.
WRIT PETITION NO. OF 2017 (O)
PETITIONER : NARENDRA
PRASAD, Aged about
__ years, S/o Mr. Gajraj Prasad, R/o Member,
Nagarjun Housing Cooperative Society Limited, registration No. DRB/ 399 dated
12.04.1984, R/o Near Shiv Temple Premises, Nagarjun Nagar, Piplani, BHEL, District
– Bhopal (Madhya Pradesh).
Versus
RESPONDENTS :1. THE STATE OF MADHYA PRADESH,
Through the Principal Secretary, cooperative Department, Ministry,
Vallabh Bhawan, Bhopal (Madhya Pradesh). Phone : 0755-2441424
e-mail : pscoop.mp@mp.gov.in
2. Madhya
Pradesh State Co-operative Election Authority, Government of Madhya Pradesh, Block-C,
Second Floor, Satpuda Bhavan, Bhopal – 462 004, (Madhya
Pradesh). Phone No. :- 0755-2554567, 0755-2554568, BSNL : 9425103006, Email
:- coop.election.mp@gmail.com
3. Commissioner, Cooperatives & Registrar
Cooperatives Societies, Bhopal, Government of Madhya Pradesh, Satpura
Bhawan, Bhopal – 462 004, (Madhya Pradesh). Phone : 0755- 255 1513, Fax : 0755- 255 1134 E-Mail : rcs.mp.bhopal@mp.gov.in
4. Joint Commissioner, Co-operation Government of
Madhya Pradesh, Bhopal – 462 004, (Madhya Pradesh). Phone : 0755- 2540881 e-mail : jrcoop.bpl@mp.gov.in
5. Returning – cum - Registration Officer, Nagarjun Housing
Cooperative Society Limited, D- Block, Old Secretariat, Bhopal (Madhya Pradesh)
6. Nagarjun Housing Cooperative Society Limited, registration No.
DRB/ 399 dated 12.04.1984 through its Administrator, Shiv Temple Premises,
Nagarjun Nagar, Piplani, BHEL, Bhopal (Madhya Pradesh)
(Writ Petition under Article 226 of
the Constitution of India).
1. Particulars of the Cause/ Order against which
the petition is submitted:
(1) Date of Order /
Notification/ Circular / Policy/ Decision Etc. : 10.08.2017
(2)
Passed in (Case Or File Number) : Election/ 2017/03
(3)
Passed by (Name and Designation of the Court, Authority, Tribunal
Etc.) : Ms. Suvita, Returning – cum - Registration Officer, Nagarjun Housing
Cooperative Society Limited, D- Block, Old Secretariat, Bhopal (Madhya Pradesh)
(4)
Subject – matter in brief: By preferring
this petition under Article 226 of the Constitution of India invoking the extraordinary
writ jurisdiction of this Hon’ble High Court by calling in question the
legality, validity, propriety and correctness of the inaction on the part of
the respondent authorities in not taking any decision on an appeal preferred by
the petitioner. As per the direction of the constitution (97th Amendment)
Act,2011, Article 243ZK, the superintendence, direction and control of the
preparation of the electoral rolls for, and the conduct of all elections to a
Co-operatives society shall vest in such an authority or a body, as may be
provided by the legislature of a state. Accordingly, Madhya Pradesh
Co-operative Societies Act, 1960 was amended providing for the constitution of
our Co-operative Election Authority in the state. In terms of section 57-C of
Madhya Pradesh Co-operative Societies Act, 1960. The State Govt. Shall, by
notification in the official Gazette, appoint a person as the Madhya Pradesh
State Co-operative Election Authority. Accordingly, the authority has been
appointed vide gazette notification No. 274,Bhopal, Date 25-06-2013. From
pillar to post petitioner, being the Law abiding national, knocked every door
for the redressal of his grievances but at the end petitioner surrenders
himself before this Hon’ble High Court to seek justice as litigation is the
last resort when governments completely disregard the rule of law.
2. A declaration that no proceeding on the same
subject matter has been previously instituted in any Court, Authority or
Tribunal, if instituted, the Status or result thereof, along with copy of the
Order:
Petitioner
declares that no proceeding on the same subject matter has been previously
instituted in any Court, Authority or Tribunal.
3. Details of the remedied exhausted :
The
petitioner declares that he has availed all statutory and other remedies.
4. Delay, if any, in filing the petition and
explanation therefor
It is most humbly and respectfully submitted
that there is no delay in filing of the instant writ petition.
5. Facts of the
Case :
1.
Petitioner is a peace loving
national of India and entitled for the all the benefit and fundamental rights
as enshrined in Part III of the Constitution of India. Respondents are the
instrumentality of state within the meaning of Article 12 of the Constitution
of India and therefore amenable to the writ jurisdiction of this Hon’ble High
Court.
2. Respondent No. 5 was appointed as a registration officer vide
Order dated 26.08.2016 issued by respondent No. 2. Thereafter she directed the respondent
No. 6 society to accord sanction to the election programme. Copy of the memo
issued by respondent No. 5 is filed herewith and marked as Annexure P-1. Respondent No. 5 was appointed as a returning
officer vide Order dated 10.07.2017 issued by respondent No. 2. Vide Election
Programme No. Election/ 2017/ 03 dated 19.07.2017 issued by returning officer scheduling
that the election to the respondent No. 6 society would be held on 04.08.2017.
Copy of the Election Programme dated 19.07.2017 is filed herewith and marked as
Annexure P-2. Vide an
objection dated 31.07.2017 Annexure
P-3 raised by one of the member of the society Mr. Jitendra Tiwari, the
matter was forwarded to the respondent No. 2 by the deputy commissioner,
cooperative, Bhopal as to applicability of Rule 49-E regarding Issuing
of election Programme, The Returning officer shall affix the notice on the
notice board of the society in Form G-8 at least 14 days before the date fixed
for annual general meeting or special general meeting of the society, as the
case may be. Copy of the memo dated 01.08.2017 is
filed herewith and marked as Annexure
P-4.
3. Petitioner also filed his nomination papers and his name appeared
in the list issued by respondent No. 5 dated 30.07.2017. Copy of the list
prepared by respondent No. 5 of all the candidates who filed their nomination
papers is filed herewith and marked as Annexure
P-5. Respondent No. 5 issued
impugned Order dated 10.08.2017 to the effect in the list of qualifying candidate
the name of petitioner does not find place. Copy of the impugned Order dated
10.08.2017 is filed herewith and marked as Annexure
P-6. Petitioner raised an objection on 14.08.2017 before the respondent
No. 2 regarding rejection of his nomination paper solely on the ground his name
does not find place in the voter list issued by respondent No. 5 whereas the
grievance of petitioner was that his name is appeared in the voter list
prepared on 19.05.2017 vide Annexure
P-7. Copy of the objection dated 14.08.2017 filed by petitioner before respondent
No. 2 is filed herewith and marked as Annexure
P-8. Petitioner raised an objection on 14.08.2017 before the respondent
No. 4 regarding rejection of his nomination paper solely on the ground his name
does not find place in the voter list issued by respondent No. 5 whereas the
grievance of petitioner was that his name is appeared in the voter list
prepared on 19.05.2017 vide Annexure P-7. Copy of the objection dated
14.08.2017 filed by petitioner is filed herewith and marked as Annexure P-9.
4. Petitioner also prayed that respondent No. 5 be directed to include
his name in the voter list and he be allowed to take part in election
proceeding. Petitioner alongwith some other members of the society raised a
voice against the malafide intention of respondent No. 5. Copy of the representation
dated 16.08.2017 is filed herewith and marked as Annexure P-10. Hence this petition on following grounds
amongst the others
6. Grounds urged :
A.
For
that, respondent authorities failed to appreciate that there is a Procedure for
conduct of elections in Cooperative Societies under the provisions of Section 49-C
of the Madhya Pradesh Co-operative Societies Act : Preparation of member list
for election - (1) Every society shall prepare a list in Form G-1 of members
for the election of its Board of Directors/Delegates including members
disqualified under subsection (7) of Section 48 or Section 50-A or as per
bye-laws. The list shall indicate the defaulter within the meaning of Section
50-A by assigning sign "X" and word "Defaulter", and in
case of members belonging to Scheduled Castes, Scheduled Tribes, the respective
category shall be indicated against their names. The society shall present,
with the list so prepared and prescribed process fee, before the Authority or
an officer so authorized in this behalf by a general or specific order of
Authority, an application for the election of new Board of Directors at least
four months prior to expiry of term of Board of Directors in Form G-2 with the
following documents :- (a) true copy of resolution of Board of Directors; (b)
copy of the byelaws; (c) the date on which the last elections were held; (d)
the date on which the term of existing Board of Directors is expiring; (e) the
date of Administrator appointed under Section 53, if any; (f) the date of
registration of society, in case of newly registered society; (g) the numbers
of vacant posts to be filled up by election; (h) whether the byelaws provide
for the creation of wards or constitution of general body of delegates before
the election of Board of Directors, and action taken therefor, if any; (i) any
other information which is relevant for the conduct of election.
B.
For
that the respondent authorities ought to have appreciated that there is a
procedure for Appointment of Registration Officer.- After examining the
applications received under sub-rule (1), the Authority shall appoint
Registration Officer for obtaining objections, disposing of such objections and
to prepare final 2 member list. For further action, the Authority shall provide
such appointment letter and member list to Registration Officer.
C.
For
that the respondent authorities committed grave error and irregularity in not
considering that there is a procedure for Publication of list of membership-
(a) Registration Officer, after receiving member list as envisaged in sub rule
(2), and for adding name in the list and for inviting objections on any such
entry, shall make available the same to all members of society in Form G-3 by
means of publication in newspapers and of one of the following means:- (i)
through acknowledgement of personal written notice. (ii) By Registered post.
(iii) By ordinary post. (b) The Registration Officer shall cause to publish the
voter list in Form G-4; (i) On notice board of the office of society; (ii) On
notice board of office of block Panchayat; (iii) On notice board of nearest
branch of District Central Cooperative Bank; (iv) On the notice board of office
of the Deputy/Assistant Registrar of the district; (c) The objections may be
presented before the Registration Officer during the period of minimum 7 days
as described in the information referred to above, and date, time and venue
shall be fixed by Registration Officer for hearing such objections, if any. (d)
Registration Officer, with the publication of information referred to above,
shall make available one copy of member list in the office of coordinator, and
in the office of concerned society for inspection, and communicate the
Authority the intimation of publication by registered post.
D. For that, the respondent
authorities committed material irregularity/ illegality in not following the Presentation
of objections- (a) Any such person whose name is not entered in the voter list
or is entered at the wrong place or with incorrect specifications or any such
person whose name is entered in the list and who objects to the inclusion of
his own name or name of any person in that list may prefer a claim or objection
and receive acknowledgement for the same by giving a written application to the
Registration Officer, with signature/thumb impression upto the last date till
the office hours as specified from the date of issue notice as envisaged under
sub-rule (3), and no objection/claim shall be received after the specified time
period. Registration Officer shall maintain a register in Form G-5 for receiving
objections. (b) Every claim or objection may be accompanied with such documents
on which the claimant relies. The objection so preferred with the corroborating
documents shall be conclusive and final for claimant.
E.
For
that, the respondent authorities ought to have appreciated that there is a
procedure of Disposal of objections- (a) Registration officer shall, after
holding such summary enquiry into the claim or objection as he thinks fit,
record his decision in writing and shall make available on demand immediately a
copy of such decision to the claimant free of cost. (b) No claimant shall be
represented by any legal practitioner or counsel in any proceeding under this
rule. (c) Registration officer shall amend the voter list in accordance with
his decision. (d) The voter list so amended shall be subject to decision in
appeal if any, be final and one copy thereof duly signed by the Registration
officer shall be kept in his office in Form G-6, and second copy shall be
deposited in office of Authority: 4 Provided that any person whose name is
shown in the list with sign "X - Defaulter", may, at any time before
the date on polling is to be held, after making necessary payment of his dues
on account of which he had been shown as defaulter in the list of the society
concerned and on production of a proof in token thereof in Form G-7, get the
list corrected by the Returning Officer. (e) Any person aggrieved by the
decision of Registration officer may prefer an appeal before Authority or any
officer so authorized/specified by him, within three days of such decision.
Every appeal shall be preferably in writing with the copy of decision of
Registration Officer. Appellant Authority after giving the appellant an
opportunity of being heard and conducting an enquiry as he deems fit, shall
pass an appropriate order within seven days and in case the appeal having been
allowed shall direct the Registration officer to amend the voter list to give
effect to the decision. The decision of Appellate Authority shall be final:
Provided that if the appeal is not disposed of in time period of 07 days by Appellate
Authority, the voter list finalized by Registration officer shall be binding
and conclusive: Provided further that no amendment, modification, addition or
deletion in any entry of voter list after such finalization thereof shall be
allowed until the election process is completed. (f) Inspection of certified
copies and issuance thereof - Every member of society shall have right to
inspect the list of membership on payment of fees of Rs. Five and certified
copies thereof may be issued on the payment of Rs. Two per page by the society
or Authority or an officer authorized by him. (g) Two copies of final list of
membership so prepared by the Registration officer shall be presented before
the Authority in maximum period of three days.
F.
For
that although there was there was procedure prescribed under the provisions of
section 49-D for Appointment of Returning Officer, but it has not been followed
-The Returning officer shall be appointed by the authority to conduct the
election before minimum 20 days of the expiry of the tenure of the Board of
Directors. Such appointment order shall consist of the final voter list duly
signed by the Registration Officer, which will be a marked copy, the order of
reservation of seats in the Board of Directors as per the provision of Section
48(3) of the Act and the Programme to conduct elections. Subject to the
provisions of the Act and as specified in these rules, the Returning Officer
shall conduct the election under the direction of the Authority and according
to byelaws of the society: Provided that no member and employee of the society
shall be appointed as Returning Officer.
G. For that, there
exists under Section 49-E Procedure for election of members of the Board of
Directors but it has not been followed. (1) (a) Subject to the provisions of
sub-section (c) of section 49, the election of members of Board of Directors
shall be held by the members in the Annual General Meeting or Special Annual
general meeting, as the case may be, of the society convened by the Returning
Officer: Provided that where in the bye-laws of society, there is a provision
of constitution of the General body by the election of delegates, then election
of Board of Directors shall be held amongst the delegates and by the delegates.
(b) Such election shall take place after all other matters, if any, included in
the agenda of annual general meeting have been considered. (2) Subject to the
provision of sub-section (3) of section 48 where seats are to be reserved in
the Board of Directors for women members, the Returning officer shall reserve
such seats for women members by drawing a lot before the Board of
Directors/Administrator of the Society. For this purpose, chits will be prepared
equal to the total number of seats in the Board of Directors describing thereon
unreserved and Scheduled Caste or Scheduled Tribe, as the case may be, two
chits shall be picked up and seats shall be reserved for women accordingly. (3)
Issuing election Programme - The Returning officer shall affix the notice on
the notice board of the society in Form G-8 at least 14 days before the date
fixed for annual general meeting or special general meeting of the society, as
the case may be, and shall contain :- (a) the class-wise number of members to
be elected; (b) last date of nominations (the last date for nominations, which
shall be not less than 7 days before the date fixed for holding the said Annual
General Meeting), the hours between which, the place at which nomination papers
shall be presented; (c) the date on which and the place at which and hours
between the scrutiny of nomination papers shall be made and the last date for
withdrawal of the candidatures; (d) If necessary, the date and place of Polling
and the date for co-option against vacant seats of members of the Board of
Directors, if any. (e) The date for election of Chairman/President,
Vice-Chairman/Vice President and representatives to be sent to other societies
and such other officers as specified in the bye-laws. Such notice shall be
served to the members of the society in Form G – 9 by publication of notice in
news paper and by one of the following methods – (a) through acknowledgement of
personal written notice, (b) by registered post, (c) by ordinary post, 7 Such
notice issued for election shall be displayed on the notice board of the
society and in the office of authority and Coordinator and at such local
offices such as Gram Panchayat/Janpad Panchayat/ Tehsil/Office of the
Collector. (4) Presentation of nomination papers.- (a) Every nomination paper
shall be signed by two members of the society, group, if any, as proposer and
seconder and the candidate of the groups shall sign a declaration on it
expressing his willingness to stand for election. (b) A member of a group, if
any, may sign as proposer and seconder, as many nomination papers as there are
vacancies to be filled in the group. Each candidate shall be nominated by a
separate nomination paper. (c) If a candidate files more than one nomination
paper for any post, then all the nomination papers shall be scrutinized by the
Returning Officer. (d) Each candidate, either personally or through his
proposer or seconder, shall deliver a nomination paper in Form G - 10 to the
Returning Officer. (e) At the time of presentation of nomination paper under
clause (a) above, amount of security deposit, as prescribed by the State
Government in consultation with the authority for classified societies, shall
be deposited in favour of society before the Returning officer. The Returning
Officer, shall on receiving the nomination paper, enter thereon the serial
number of its receipt and shall endorse thereon the date on which and the time
at which the nomination paper was delivered to him. He shall also acknowledge
receipt of the nomination paper. He shall also enter the name of the proposer,
seconder and the candidate and the office for which the candidate seeks to
contest in a 8 register in Form G-11 in the order to which nomination papers
are received. When any person has signed as proposer or seconder, on the larger
number of nomination papers than vacancies are to be filled, those of the
papers so signed which have been first received up to the number of vacancies
to be filled, shall only be deemed to be valid. On presentation of nomination
papers, the Returning Officer shall satisfy himself that the name of the
society and its registration number, names and serial numbers in the list of
the members of the candidate and his proposer and seconder as entered in the
nomination paper are the same as those entered in the list of members: Provided
that the Returning Officer shall permit any misnomer or inaccurate description
or clerical, technical or printing error in regard to the name of the candidate
or the proposer or seconder or in regard to any serial number of any such
person mentioned in the list of members or the nomination papers such as to be
commonly understood, and the Returning officer shall permit any such misnomer
or inaccurate description or clerical, technical or printing error to be
corrected and when necessary, shall overlook any such misnomer, inaccurate
description, clerical, technical or printing error in the list of members or in
the nomination papers, the Returning officer shall get such blanks filled in
before recording his endorsement on the same. (f) No nomination paper shall be
received after the date and time fixed under clause (b) of sub-rule (3). The
Returning officer shall on each day prepare a list of nominee persons in Form G
-12 along with their proposers, seconders and officers, exhibit the same on the
notice board at the place fixed for receipt of the nominations. 9 (5) (a)
Nomination papers duly received shall be scrutinized by the Returning officer
on the date fixed for the scrutiny under Clause (c) of sub-rule (3). (b) It
shall be open to the persons filling the nomination paper to be present at the
time of scrutiny. (c) The Returning Officer shall not reject any nomination
paper on the ground of any defect which is not of a material character nor
shall it be rejected on the ground of any irregularity in respect of a
nomination Form, in which no irregularity has been committed, (d) The Returning
Officer shall for reasons to be recorded in writing, reject a nomination paper
only on the following grounds - (i) if the nomination paper is not in
accordance with the preceding sub-rule, (ii) if the candidate is disqualified
to be elected or proposer/seconder is disqualified to vote by or under the Act,
rules or bye-laws of the society. (e) The Returning officer shall prepare a
list of valid nomination papers in Form G- 13. (6) Any candidate may withdraw
his candidature by notice in writing, subscribed by him on a date fixed under
clause (d) of sub-rule (3) or by submitting in Form G-14 to the Returning
Officer in personal capacity or through his proposer or seconder. The Returning
Officer shall prepare a list of such candidates in Form G-15, who has withdrawn
his candidature. A candidate shall not be allowed to cancel his withdrawal. (7)
On completion of the scrutiny of the nomination paper and after his candidature
may be withdrawn under sub-rule (6), the Returning Officer shall prepare a list
of candidatures in Form G -16, whose nominations are in order and who have not
withdrawn their candidature. If there is more than one valid nomination for a
single candidate in the list, then the first nomination of such 10 candidate
shall be accepted and he will put his signature on the list as a symbol of it
being true and shall get it published and get it exhibited on the notice board
of the society. (8) If the number of duly nominated candidates for election as
members or Board of Directors is equal to or less than the number of seats to
be filled, the Returning Officer shall declare in Form G -17 that there is no
need for polling for such members and he shall intimate this fact to the
society. (9) If the number of members of the Board of Directors, so elected
falls short of number of seats, specified on the notice of election for members
of Board of Directors shall fill up the remaining seats by co-option in a
meeting to be presided by the Returning Officer: Provided that, if the number
of members elected falls short of the quorum fixed for the meeting of the Board
of Directors, co-option shall not be made and the election process shall be
started afresh for the remaining seats. 10 (a) If the number of duly nominated
candidates is greater than the number of members to be elected, immediately
after the expiry of the period within which candidature could be withdrawn
under Clause (c) of sub rule (3), then the Returning Officer shall prepare and
publish a list of contesting candidates whose nomination papers have been
finally accepted and who have not withdrawn their candidature during the
specified period. (b) The list referred to in Clause (a) shall contain the
names of contesting candidates along with names of Father/Husband, in
alphabetical order in Hindi along with their addresses as given in nomination
papers. (c) The list of contesting candidates referred to in clause (a) shall
contain the particulars in the list and shall be prepared in Hindi in Devnagari
script. 11 (d) The alphabetical order referred in clause (b) shall be
determined with reference to surname of the candidates having surnames and to the
names proper in the case of other candidates. (e) Where a poll becomes
necessary, the Returning Officer shall assign to each Scheduled Caste,
Scheduled Tribe, Women and unreserved candidate a symbol in serial order as
listed below and the symbol shall be printed on the ballot paper – (1) Flower,
(2) Bullock, (3) Sword (4) Two leaves, (5) Scales (6) Box, (7) Lion (8) Bullock
card, (9) Chair (10) Hut (11) Bird (12) Match box (13) Tree (14) Book (15)
Television (16) Fish (17) Deer (18) Well (19) Pump (20) Telephone (21) Motor
Car (22) Motorcycle (23) Aeroplane (24) Rail engine (25) Boat (26) Fountain pen
(27) Wall clock, (28) Ring. (f) If the list of the symbols in clause (e) is
exhausted, the Returning Officer may in his own discretion allot to the candidate
concerned any symbol other than those specified in the list : Provided that no
symbol shall be allotted to any candidate, which is allotted to any political
party by the Election Commission of India. (g) The symbol allotted to the
contesting candidates of any group shall be printed on the ballot papers, meant
for the group. The ballot paper shall show only the name of the Office for
which the vote is being cast, the names and the symbols of contesting
candidates in the same serial order as displayed in Form G - 18 by the
Returning Officer on the notice board of the society under clause (g) of
sub-rule (10): Provided that where the candidates have similar/identical names,
then their names shall contain their fathers name. (h) The list of names of the
contesting candidates for any group and the symbols allotted to each of them in
the same serial order as 12 mentioned in clause (e) of rule 10 shall be
displayed before the ballot box kept for casting of votes of the group
concerned, such list shall also be displayed on the gate of the Polling Booth.
(i) The Returning Officer shall immediately after preparation the list of the
contesting candidates in Form G-18, cause to be displayed a copy thereof on the
notice board of the society and shall also supply a copy thereof to each of the
contesting candidates. (11) If the general meeting is adjourned for want of
quorum, the list of valid candidates shall hold good for the Poll to be held in
the next general meeting; (12) The Returning Officer shall appoint in Form G-19
as many polling officers to conduct the poll and as many tellers to count the
votes as may be necessary. (13) A register shall be kept at the place of the
general meeting and every member who attends the meeting shall sign such
register before he enters the place of the meeting. (14) The Polling Officer
shall issue to each voter as assigned a ballot affixing the seal of the society
and putting his initials on the right hand side of it and back after marking a
mark by indelible ink on the tip of the forefinger of the voter. (15)
Canvassing or soliciting votes during the conduct of elections shall be
strictly prohibited within the periphery of one hundred meters of the place
where the poll is being held. (16) The Returning Officer shall show the empty
ballot boxes to the candidates or the authorised Polling agents, if any,
present, close and seal them leaving open the slit for insertion of ballot
papers. Voting shall be by ballot and voters shall make a mark ‘x’ on or
against the symbol, one in case of one office and symbols in case of more than
one office of candidates whom he wishes to elect, fold the ballot paper in such
a manner that his intention remain clear about the particular candidate and
deposit it in the ballot box. In the case of physically disabled who requires
help, the Returning Officer shall authorise a 13 person in marking marks on the
symbols of the candidates according to the written application of such voter.
(17) The Returning Officer shall before taking the poll fix the hours which shall
not be less than two hours during which the poll will be taken, make
announcement to that effect in the general meeting and on the expiry of the
hours so fixed he shall close the poll. Those voters, who are present at the
voting place have not been able to vote for want of time, shall be given
reasonable opportunity to obtain ballot papers even though the time fixed for
the poll has expired. After the closure of the poll, the slit of the ballot
boxes shall be closed and sealed and delivered to the tellers. An account of
used and un-used ballot papers shall be prepared and counter foils of used
ballot papers; unused ballot papers and marked copy of voter list shall be put
in an envelope and sealed kept in the box referred to in sub-rule (25). (18)
Tender ballot paper - If a person, who claims to be a nominated member in the
list of members and complains in writing that his vote has already been voted
as such, the applicant shall be after duly answering such question as the
Presiding Officer may ask, be entitled to receive a ballot paper, referred to
hereinafter called "Tender ballot paper" as other members. Each voter
shall, before being supplied with a tender ballot paper affix his signature or
thumb impression against the entry relating to him in a prescribed form. A
Tender ballot paper shall be serially the last in the bundle of ballot papers
issued for polling. Such tendered ballot papers and its counterfoil shall be
endorsed on the back with the words 'Tendered ballot paper' by the Presiding
Officer in his hand and signed by him, the voter instead of putting it into the
ballot box, give it to the Presiding Officer by folding it properly, which
shall be kept in an envelope specifically kept for this purpose. (19) Ballot
Paper accounts : The Returning Officer/Presiding Officer shall, at the close of
the poll prepare a separate ballot paper account for each class separately in
Form G-20. One certified true copy of entries made in such 14 ballot paper
account shall be given to each candidate or his poll agent, who is present at
the closure of polling on receipt of acknowledgement. The prepared ballot paper
accounts shall be kept class-wise in separate envelopes and marked as “Ballot
Papers Account ( name of Class) thereupon. (20) Tellers shall arrange and count
all ballot papers – (a) They shall reject a ballot paper after obtaining the
approval of the Returning Officer. Provided that – (i) if it bears signature to
identify the voter; (ii) if it does not bear the seal of the society or the
initials of Polling Officer; (iii) If it contains no mark indicating a vote;
(iv) If it contains more marks than the number of seats to be filled. (b) A
seal mark made in a ballot paper in such manner that it is ambiguous to which
candidate the vote is given shall be rejected: Provided that other correctly
made marks, if any, on such ballot paper shall be counted. (21) Re-counting:
When the counting under rule (20) is over, a candidate may apply in writing to
the Returning Officer or such officer authorised by him for recounting mentioning
the grounds for recounting of all the votes caste or any other vote cast:
Provided that such applications may be made within 30 minutes after the polling
is closed. The Returning officer shall accept the application by subscribing
“wholly” or “partially” on the application or he may reject application if it
appears to him as illogical. The Returning Officer or such officer authorised
by him shall order for recounting in case of accepting the application “wholly”
or “partially” and after completion of recounting shall amend/modify the ballot
paper upto a reasonable limit and shall make an announcement about such
amendment/modification. Such recounting can take place only once. 15 (22) The
Returning Officer shall immediately after completion of counting of votes,
prepare the details in Form G -21 and certify, it mentioning – (i) number of
valid votes received by each candidate, and (ii) number of invalid votes; (iii)
declaration of the name(s) of successful candidate and in case of two or more
than two candidates, who have secured equal number of votes by lottery system ;
(iv) The Returning Officer on the basis of such details shall declare such
candidate as elected, who secured maximum votes, in the Annual General Meeting
in Form G-22 and shall paste it on the notice board of the society. (v) The
Returning Officer shall send the certified copy of details prepared under this
sub-rule containing names of elected or co-opted members under sub-rule (8) and
(9) to the authority and a copy of which shall be sent to the Co-ordinator .
(23). The Returning Officer, shall, under clause(d) of sub-rule (3) of rule
49-E, convene under his chairmanship, the meeting of the newly elected members
of the Board of Directors on a fixed date for the purpose of co-option of members.
If the required number of members are present in the quorum, cooption of the
members shall be made. (24) The Returning Officer shall send the certified copy
of details prepared under sub-rule (22) containing names of elected or co-opted
members under sub-rule (8) and (9) to the authority and a copy of which shall
be sent to the Coordinator (25) The Returning Officer shall make arrangements
to keep in safe custody of authority or its designated person the sealed Box
containing referred nomination papers, registers and Ballot papers and details
of election under sub-rule (4), (5) and 13). These documents shall not be
destroyed until the next election of the society or final settlement of the
presented election dispute 16 under sub-section (2) (v) of Section 64.
Thereafter, the Authority shall get them destroyed either in his own presence
or in the presence of an authorised officer. (26) If there is a provision in
the bye-laws of a society regarding constitution of General Body through
election of delegates, then the election of such delegates of the society shall
be held in accordance with the procedure of rule 49-c, 49-d and 49-E: Provided
that the election of delegates shall be held before submitting the application
for election of the Board of Directors. (27) Every member of the Board of
Directors and all the employees of the Society, Registration officers,
Returning Officers, Tellers and persons related to conduct the work of election
shall be bound to extend all kind of help/assistance and shall make available
each records to the Returning Officer as desired by him. The Society shall make
available all necessary logistics and resources to the Returning Officers well
in advance of election. All expenses incurred in such election shall be borne
by the Society.
H. For that, there is a
procedure under section 49-F for the election of chairman, vice chairman and
representatives by the members of Board of Directors but it has not been
followed - (1) Subject to the provisions of clause (e) of sub rule (3) of rule
49-E, the Returning Officer shall convene a meeting of elected and co-opted
members of Board of Directors on a fixed date and its notice will be given to
every member of Board of Director at least 3 days before the date fixed for
election by getting there receipt in writing in Form G-23 and such notice shall
contain- (a) the number of officers and representatives to be elected. (b) date,
place at which and hours between which and person to whom the nomination papers
shall be presented. (c) place at which and hours between which scrutiny of
nomination papers shall be made and the date and place of polling, if
necessary; (d) time for withdrawal of candidature; 17 (e) the time for election
of Chairman/President /Vice-Chairman/Vice President and representatives and
such other officers as may be specified in the byelaws, such meeting shall be
presided over by the Returning Officer. (2) The nomination paper in form G-24
shall be presented to the Returning officer. The Returning Officer after short
scrutiny which he deems fit, consider the objections, if any, and which are
raised on the specified time with regard to any nomination paper and declare
the names of valid candidates. (3) Where more than one valid nomination papers
are not received for a post, the returning officer shall declare such candidate
duly elected with regard to whom valid nomination paper has been received. (4)
Where more than one valid nomination papers are received for a post, the
Returning Officer shall make arrangements for voting in prescribed manner under
rule 49-E. (5) As all members present, finish to cast their votes or after the
expiry of the time fixed for voting, the Returning Officers shall open the
ballot box in the presence of members, count the votes, and by way of declaring
the result of election declare the candidate elected who has secured largest
number of votes and display the number of votes received by each candidate. In
case of two or more candidate getting equal number of votes, lots shall be
drawn in such a manner as may be determined by the Returning Officer. (6) The
proceedings of meeting alongwith result of election shall be recorded in the
proceeding book of the society and shall be certified by the Returning Officer.
(7). Valid nomination papers and other records shall be kept safely, whereon
seal of society and candidate if they desire so shall be put and it will be
kept safe till three months from the date of election. If no dispute with
regard to election, is referred to the Registrar, then after expiry of that period
it shall by destroyed giving its information to the Authority. The Returning
Officer, shall in form G-25 maintain a diary of Returning Officer and shall
send its copy and result of election in form G-26 to the Authority.
I.
For
that, there exists a provision under section 49-G. In contingent situation and
in case of destruction of ballot box or any wrongdoing with ballot paper the
postponement of voting - (1) If in any election, proceeding for the poll are
interrupted or obstructed by any riot or open violence or if at an election, it
is not possible to take the poll at any polling booth on account of any natural
calamity or any other sufficient reason, or ballot box used on polling booth is
taken away unlawfully from custody of the Presiding officer or the Returning
Officer or eventually or intentionally destroyed, or ballot papers are torn off
or destroyed, or it is damaged to the extent that its originality is spoiled
and because of which the result of the election of that polling booth cannot be
decided, then the Returning Officer or the Presiding Officers shall declare to
postpone the polling to be held on other date and where the Presiding Officer
postpones the polling for aforesaid reasons, he shall immediately inform the
Returning officer. Thus when the polling is postponed the Presiding Officer
shall immediately send a report of circumstance to the Returning Officer who
shall, as soon as possible, fix the date on when the polling will recommence
and fix the polling booth at which and hour during which voting will be
conducted. the Returning Officer or the Presiding Officer shall as far as
practicable follow the provision of rules in respect of sealing ballot box and
other envelops, in preparing ballot paper accounts and in giving ballot box and
other materials of elections. In each case as aforesaid the Returning Officer
shall publish the place, date and hour for voting and provision of rules
governing original voting shall mutatis mutandis apply subsequent voting with
necessary changes. (2) When a poll, which has been postponed under sub rule (1)
is re-continued, all voters shall be entitled to vote again. In event of
postponed polling recommence, an additional copy of marked copy of voter list,
a new ballot box and ballot papers shall be made available. The Presiding
Officer in the 20 presence of candidate or their election agents shall open the
sealed packet of marked copy of voter list which will be used to mark name of
voters to whom the ballot paper will be issued. The provision of rules shall apply
to re-polling in the same way as it was applicable before the postponement of
voting. (3) Fresh polling/election because of procedural irregularity- (a). If
on any polling booth any error or irregularity in procedure as is likely to
vitiate the poll is committed at the polling booth, the Returning Officer shall
inform the matter immediately to Authority and shall also give a copy of the
same to coordinator. (b). The authority shall on receipt of report and after
taking all material circumstances in to account, either - (i) declare the poll
at the polling both to be void, appoint a day and fix the hour, for taking
afresh poll at that polling booth and direct the Returning Officer to notify
the day so appointed and the hours so fixed in such manner as it may deem fit;
or (ii) if the authority is satisfied that the result of a fresh poll at the
polling booth will not, in any way affect the result of the election or that
the error or irregularity is not material, issue such direction to the
Returning Officer as it may deem proper for further conduct and completion of
the election; (iii) when the authority expected, after consideration the matter
immediately the Returning Officer shall give his opinion to the authority. In
every case, the Returning Officer shall proceed to conduct the fresh poll, in
accordance with the direction of the authority and the provision of this
chapter shall apply to such fresh poll.
J.
For
that, there exists a provision under Section 49-H as to Election by Authority
on its own motions - According to sub section (3) of section 57-D of the Act,
four months before the expiry of the term of outgoing Board of Directors of any
cooperative society if a request in writing by the 21 Board of Director of that
society is not received, then on receiving quarterly return presented by
coordinator or on the ground of his own information, the Authority shall
conduct the election suo moto. For this purpose it shall be mandatory for the
coordinator that at the end of every quarter the information regarding expiry
of the term of Board of Directors of societies for next four months shall be
sent to the Authority and the Authority shall also maintain this information
properly at his level
K.
For
that, there exists a provision under Section 49-I as to Return or forfeiture of
security deposit - Security deposit shall be returned to the candidate as soon
after the result of the election is declared. The deposit shall be forfeited in
favour of the society if at election, where a poll has been taken the candidate
is not elected and the total number of valid votes polled by him does not
exceed one sixth of valid votes received by all the candidates.
L.
For
that, there exists a provision under Section 49-J as to The pay, other
allowances, terms and conditions of service of the Authority – (1) The terms
and conditions of service of Madhya Pradesh. State Cooperative Election
Authority appointed under the provision of section 57-C of the Madhya Pradesh
Cooperative Societies Act, 1960– If the Authority at the time of his appointment
being the rank of secretary or above getting pension, gratuity or any other
retirement benefit or is entitled to get the same, such gross pay after
deducting the gross pension (basic pension and dearness allowance) at the time
of retirement from gross pay (pay +grade pay+ dearness allowance) in the
capacity of secretary or above will be given to him. (2) The officer and
employees posted under the Authority will get the pay and dearness allowance
equal to the officer and employees holding analogous posts in the Government.
In the matter of retirement age pension, pay, dearness allowance and other
benefits and disciplinary matters the officers and the employs posted under the
control of the Authority will be governed by the same rules as the employees of
the Government holding the analogous posts. (3) Working hours and Leave-
Working hours and Leave of the Authority and officers/employees in its office
will be the same as declared by the state government and local holidays as
declared by the local authorities from time to time. (4) Competent authority to
sanction leave.– State government will be the competent authority for
sanctioning leave to authority and authority shall sanction leave to officers
and employees, subordinate to it. (5) Entitlement for Travelling Allowance and
Medical Treatment – Travelling allowance and Medical facilities will be same
for the Authority which were in practice at the time of its retirement.
Travelling allowance and Medical allowance for the officers and employees of
the Authority will be as per the State Government rules amended from time to
time. (6) Residence Telephone and Vehicle facility – Rules for residence,
telephone and vehicle for the Authority will be same which were in practice at
the time of retirement. Rules for residence, telephone and vehicle for the
officer/employees posted in the office of the authority shall be the same as
followed by the Government and as amended from time to time. (7) Financial
Powers – Financial powers of the authority shall be the same as delegated to
the head of cooperative department in the book of financial powers. (8) Control
and Discipline - All officers and employees in the office of the authority will
be under control and supervision of the authority . (9) Provision of the Madhya
Pradesh Civil Service (Classification, control & appeal) Rules, 1966 and
the Madhya Pradesh Civil Service (conduct) Rules, 1965 shall be applicable to
the officers and employees of the authority subject to the following – 23 (a)
Disciplinary authority for class – IVth, IIIrd and IInd employees will be
secretary or any officer subordinate to the authority who shall be nominated by
him for this purpose. (b) State Government will be disciplinary authority for
class-I officers. (c) Appeal against orders passed by the nominated officer
under clause (a) shall lie to the Authority. (d) Appeal against any order
passed by the authority shall lie to the State Government. (10)
Officers/Employees under the Authority will be appointed by the State
Government in consultation with the Authority: If no intimation regarding
consultation is received within 30 days from the date when such consultation
was sought from Authority, it will be assumed that the Authority has given its
consent regarding the same and government will take decision as it deems fit.
(11) Secretary, Deputy Secretary and Under Secretary posted under the Authority
will be Additional Registrar/ Additional Commissioner, Joint Registrar/Joint
Commissioner and Deputy Registrar/Deputy Commissioner of cooperative Department
of State Government, Other regular employees will be on deputation to the
Authority from cooperative Department on the same posts. Contract employees
will be appointed by the Authority.
M. For that, there
exists a provision under Section 49-K as to (1) Administrative Control of the
Coordinator.- The Returning Officer, Assistant Returning Officer, Presiding
Officer, Polling Officer and all other persons appointed in accordance with
these rules shall work under the administrative control of the coordinator with
overall direction and control of the Authority. (2) Returning Officer,
Presiding Officer etc. deemed to be on Deputation.– Returning Officer,
Assistant Returning Officer, Presiding Officer, 24 Polling Officer and any
other officers appointed under this chapter for the conduct of any election
shall be deemed to be on deputation for that period which starts on and from
the date on which election is announced to the date when the result is declared
to the extent of the election work and shall be under the control,
superintendence and regulation of the Authority for the said work. (3) Role of
Collector in the election.- Under the direction of the Authority Collector
shall make necessary arrangement for the smooth conduct of election of a
cooperative society in different phases such as filing of nomination papers,
scrutiny, polling, counting etc, and also ensure supervision & maintenance
of law & order. Collector shall also requisite government vehicles and
buildings at the expenses of the concerned society. (4) Election code of
conduct.- Authority will issue direction for enforcing amending and
implementing code of conduct in election of a cooperative society. (5) Issuing
of direction by Authority.- Authority will issue general or specific directions
from time to time for free fair and transparent election regarding Identity
cards of voters, election requisite directives and for posting of
officers/employees in election work. (6) Coordination between Authority and
Registrar office- For the smooth election of Cooperative Society, necessary
coordination will be established by Authority and Registrar office."
7. Relief Prayed for :
(a)
That the Hon’ble High court
shall be pleased to call for the entire original record of lis for its kind perusal.
(b)
That the Hon’ble High Court
shall be pleased to issue suitable writ or direction to the respondent
authorities to quash impugned Order No. Election/ 2017/03 dated 10.08.2017
passed by respondent No. 5.
(c) That
the Hon’ble High Court shall be pleased to issue suitable writ or direction to
the respondent No. 2 to decide the representation/ appeal dated 14.08.2017
submitted by petitioner.
(d) That
the Hon’ble High Court shall be pleased to issue suitable writ or direction to
the respondent No. 4 to decide the representation/ appeal dated 14.08.2017
submitted by petitioner.
(d) Cost
of this petition be also awarded in favour of the petitioner.
Any other relief deemed fit and proper
looking to the facts and circumstances of the case may also be granted.
8. Interim Order / Writ, if prayed for :
In view of the facts and circumstance of the case during pendency
of instant writ petition the operation, impact and effect of the impugned Order
No. Election/ 2017/ 03 dated 10.08.2017 passed by respondent No. 5, may kindly
be stayed, in the larger interest of justice.
9.
Documents relied on but not in possession of the petitioner :
All the
relevant material and original records in relation to subject matter in dispute
is lying with respondent authorities which my kindly be requisitioned by the
Hon’ble High Court for its kind perusal.
10.
Caveat :
That, no notice
of lodging a caveat by the opposite party is received.
PLACE : JABALPUR
DATED: ADVOCATE FOR THE PETITIONER
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2017 (O)
PETITIONER : NARENDRA
PRASAD
Versus
RESPONDENTS : THE STATE OF MADHYA
PRADESH
& Ors.
AFFIDAVIT
I, NARENDRA PRASAD, Aged about __
years, S/o Mr. Gajraj Prasad, Member, Nagarjun Housing Cooperative Society
Limited, registration No. DRB/ 399 dated 12.04.1984, R/o Near Shiv Temple
Premises, Nagarjun Nagar, Piplani, BHEL, District – Bhopal (Madhya Pradesh), do
hereby state on oath as under :
1.
That I am the Petitioner in the above mentioned writ petition and
am fully conversant with the facts deposed to in the Writ Petition.
2.
That the contents of paragraphs 1 to 10 of the accompanying writ petition
are true to my personal knowledge and the contents of paragraphs are based on
legal advice, which I believe to be true. No material has been concealed and no
part is false.
3.
That the Annexure No(s). P-1 to P-11 to the accompanying writ petition
are true copies of the originals and I have compared the said Annexures with
their respective originals and certify them to be true copies thereof.
PLACE
: JABALPUR
DATED
: DEPONENT
I, NARENDRA PRASAD, the above named
deponent do hereby verify on oath that the contents of the affidavit above are
true to my personal knowledge and nothing material has been concealed or
falsely stated. Verified at ______this______day of _______
DEPONENT
