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TMI Blog2001 (9) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal. - C.A. 596 OF 2000 - - - Dated:- 25-9-2001 - KHARE, V.N. AND AGRAWAL, B.N., JJ. JUDGMENT: V.N. KHARE, J.: There is a specified Society in the district of Ahmednagar known as Godavari Khore Dudh Utpadak Sangh (hereinafter referred to as the Society). The Society is registered under the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as the Act). The society is a central society and number of other primary cooperative societies are its members and is governed by the Act and rules framed thereunder. The management of the society is run by the managing committee, the members of which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. It was prayed therein that the order dated 21st October, 1999 be set aside. The said writ petition was subsequently dismissed by the High Court. The petitioners thereafter preferred this appeal by means of Special Leave Petition. While the appeal was pending, the election for constituting the managing committee was held but the declaration of the result was stayed by the order of this Court dated 26.11.1999. Learned counsel appearing for the appellants urged that the electoral roll being substratum of the election for constituting the managing committee and the same having not prepared and finalised in accordance with the mandatory rules, no election can be held on such electoral roll and the same is liable to be set aside. Learned counsel appearing on behalf of the respondents raised an objection regarding the maintainability of the writ petition on the ground that since the election process has already commenced and inasmuch as election has already taken place, the appellants have an alternative remedy to file an election petition under Section 144-T of the Act before the tribunal. It was further urged that the High Court has rightly declined to entertain the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be called in question before any court of law. Section 144X runs as under: Without prejudice to any other power to make rules contained elsewhere in this Act, the State Government may make rules consistent with this Act generally to provide for and to regulate all or any of the other matters relating to the various stages of the elections including preparation of list of voters. (emphasis supplied) The State Government, in exercise of power conferred by sub-section (2) of Section 144F, sub-section (4) of Section 144T, Section 144X and clauses (xi) and (xlv) of sub-section (2) of Section 165 of the Act framed Rules known as Maharashtra Specified Co-operative Societies Elections to Commitees Rules, 1971 ( hereinafter referred to as the Rules). The relevant portion of the Rules runs as under: 4. Provisional List of Voters. (1) A provisional list of voters shall be prepared by every society for the year in which general election is due to be held. Persons who are members as on the 30th June of the year immediately preceding the year in which such election is due shall be included in the provisional list. If different constituencies are provided in the bye-laws, the names of vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned who is a voter or any delegate authorised to vote on behalf of such society. (2) Every person making a claim or raising an objection shall do so by a separate petition, which shall be presented to the Collector on or before the 31st July, during office hours. (3) Every claim or objection shall be preferred in writing and state the grounds on which the claim is based or the objection is raised, as the case may be. (4) xxxxxx (5)Notwithstanding anything contained in sub- rule (4) any person who is a member of the society as on the 30th day of June of the year immediately preceding the year in which such election is due or on such subsequent date as may be fixed by the Collector under sub-rule (1) of Rule 4 and whose name is not included in the final list of voters prepared by the Collector under sub-rule (4) and who is desirous of being registered as a voter may apply in writing to the Collector in Form !-A within a period of fifteen days from the date of display of the final list of voters under Rule 7. (6) Every such application received by the Collector shall be forwarded by him within three days of the date of receipt by him to the District Deputy Registrar for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude preparation of the list of voters. Once the statute provides that the preparation of the voters list shall be part of the election process, there is no reason to hold that the preparation of the electoral roll is not an intermediate stage in the process of the election of a specified society. This matter can be examined from another angle. A perusal of the Rules discloses that the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector andfinalising the list of voters, all occur in the Rules which cover the entire process of the election. The Rules framed for election of specified societies are complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election. In view of the scheme of the Act and Rules, the preparation of voters list must be held to be part of the election process for constituting managing committee of a specified society. In Someshwar Sahakari Sakhar Kark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the electoral roll cannot be questioned in an election petition before the election tribunal, therefore, the writ petition challenging the preparation of the electoral roll could not have been dismissed on the ground that the appellant had an alternative remedy of filing an election petition.In this regard, it is relevant to notice Rule 81 of the Rules which provides for grounds for declaring election to be void. The relevant portion of the Rule runs as under: 81. Grounds for declaring election to be void.- (d) (iv) by any non-compliance with the provisions of the Act or any rules made thereunder, the Commissioner shall declare the election of the returned candidate to be void. If the contention of the appellant is that there was a breach of rule or certain mandatory provisions of the rules were not complied with while preparing of the electoral roll, the same could be challenged under Rule 81 (d) (iv) of the Rules by means of an election petition. In view that, the preparation of electoral roll is part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Representation of Peoples Act, 1950 and the Representation of Peoples Act, 1951. The Representation of Peoples Act, 1950 provides for the delimitation of constituencies and allocation of seats for purposes of election to, the House of the People and the Legislatures of States and preparation of the electoral roll, whereas, Representation of Peoples Act, 1951 provides for conduct of election. Under Section 100 of the Representation of Peoples Act, 1951 one of the grounds amongst other is an election can be challenged where there is non-compliance of the provisions of the Constitution or of the said Act and the rules or orders made there under meaning thereby that breach of the Representation of Peoples Act, 1950 cannotbe called in question in an election petition filed under 1951 Act. In that view of the matter, the decision replied upon by the appellant is distinguishable. In view of our finding that preparation of the electoral roll is being an intermediate stage in the process of election of the managing committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the elect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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