# Rishipal Sharma v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-22
- **Case number:** Writ C No. 15034 of 2018
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishipal-sharma-v-state-of-u-p-ors-48685
- **Pages:** 7

## Headnote

A. Election Law - Constitution of India -
Article 243 ZK - UP Cooperative Society
Act, 1965 - Section 29(3) - Postponement
of election process, even after issuance of
notification
-
Power
of
Election
Commission, how far can be exercised -
Held,
the
words,
'Superintendence',
'Direction' and 'Control' not only in respect
of preparation of electoral rolls but also
for conduct of elections vest very wide
powers in the Election Commission - The
Election Commission by virtue of Article
243ZK (2) of the Constitution of India and
Subsection 3 of Section 29 of the Act of
1965 is vested with almost plenary
powers, which will include the authority/
power/
jurisdiction
to
postpone
the
election or even to cancel the election -
However, the condition precedent for
exercising of such power or authority is
that the purpose of postponement or
cancellation of an election should be to
ensure free and fair polls. (Para 10)
B. Constitution of India - Article 226 -
Judicial review - Scope of interference -
Free and fair election - Revision of electoral
roll - Power exercised by the Election
Commission - Interference in election
process, how far can be made - Report of
Additional District Magistrate relating to the
illegal electoral roll was alleged to be
prepared in derogation of the writ order,
passed earlier by High Court - Held, be that
as it may, based on some material,
sufficiency of which cannot be gone into
under Article 226 of the Constitution of
India, if the Election Commissioner or Chief
Election
Commissioner
comes
to
a
conclusion that permitting the elections on
the basis of illegal or incorrect electoral roll
will not be in the interest of free and fair
elections. (Para 13)
Writ petition dismissed. (E-1)

## Text

96 INDIAN LAW REPORTS ALLAHABAD SERIES
functioning properly the Registrar may
supersede the committee of management
and has to give an opportunity to the
society to be heard in that behalf. The
Registrar has also to obtain the opinion of
the ,general body of the society. Therefore,
the opinion of the Registrar is to be
followed by some definite act which will
commence
the
proceedings
for
supersession. The provisions in the Act
indicate that some definite step like the
issue of, a notice must be taken under the
provisions of Section 35 (1) of the Act with
a view to show that proceedings for
supersession of the committee are set in
motion.

14. It is therefore manifest that
power exercisable under Section 35 (2) of
the Act is confined to the time during the
period
of
supersession
proceedings.
Unless the proceedings have started as
indicated earlier the Registrar cannot call
in aid the power exercisable under Section
35 (2) of the Act."

7. It is clear from the enunciation of
law as made by the Supreme Court in the
above judgement that the power to
suspend the Committee of Management
has to be preceded by an act which reflects
that the proceeding for supersession has
commenced. Sub-section (1) of Section 35
contemplates two overt acts by the
Registrar indicating that proceeding for
suspension has commenced, namely (i)
issuance of show cause notice calling for
explanation
of
the
Committee
of
Management and (ii) obtaining the opinion
of general body of the society in a general
meeting called for the purpose. A perusal
of the impugned order reveals that none of
the above two steps have been taken so
far. The Registrar though has formed an
opinion that suspension of the petitioner
Committee of Management is necessary,
but has not taken any steps towards
supersession
of
the
Committee
of
Management.

8. Consequently, we are of the
opinion that the impugned order of
suspension has been passed at a premature
stage
before
the
proceeding
for
supersession has actually commenced.

9.

Learned
standing
counsel
appearing on behalf of State respondents
and Sri Sujeet Kumar Rai appearing for
the intervenor submitted that the Registrar
be granted liberty to pass a fresh order
instead of keeping the matter pending, as
it will delay the matter and there are
charges of financial irregularities against
the petitioner Committee of Management.

10. Having regard to the above
submissions, we quash the impugned order
leaving it open to respondent no.2 to pass
a fresh order in the light of the
observations made above.

11. In the result, the writ petition
succeeds in part and is allowed.
----------
(2022)07ILR A96
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE RAJNISH KUMAR, J.

Writ C No. 15034 of 2018

Rishipal Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
7 All. Rishipal Sharma Vs. State of U.P. & Ors.
97
Nirankar Singh, Km. Gitanjali Shukla,
Prashant

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra, Rajendra Pratap
Singh, Sanjay Bhasin, Surendra Pratap
Singh

A. Election Law - Constitution of India -
Article 243 ZK - UP Cooperative Society
Act, 1965 - Section 29(3) - Postponement
of election process, even after issuance of
notification
-
Power
of
Election
Commission, how far can be exercised -
Held,
the
words,
'Superintendence',
'Direction' and 'Control' not only in respect
of preparation of electoral rolls but also
for conduct of elections vest very wide
powers in the Election Commission - The
Election Commission by virtue of Article
243ZK (2) of the Constitution of India and
Subsection 3 of Section 29 of the Act of
1965 is vested with almost plenary
powers, which will include the authority/
power/
jurisdiction
to
postpone
the
election or even to cancel the election -
However, the condition precedent for
exercising of such power or authority is
that the purpose of postponement or
cancellation of an election should be to
ensure free and fair polls. (Para 10)
B. Constitution of India - Article 226 -
Judicial review - Scope of interference -
Free and fair election - Revision of electoral
roll - Power exercised by the Election
Commission - Interference in election
process, how far can be made - Report of
Additional District Magistrate relating to the
illegal electoral roll was alleged to be
prepared in derogation of the writ order,
passed earlier by High Court - Held, be that
as it may, based on some material,
sufficiency of which cannot be gone into
under Article 226 of the Constitution of
India, if the Election Commissioner or Chief
Election
Commissioner
comes
to
a
conclusion that permitting the elections on
the basis of illegal or incorrect electoral roll
will not be in the interest of free and fair
elections. (Para 13)
Writ petition dismissed. (E-1)
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Rajnish Kumar, J.)

1. Heard Sri Nirankar Singh, learned
counsel for the petitioner, learned State
Counsel, Sri Gaurav Mehrotra assisted by
Sri Devrishi Kumar, learned counsel
representing
U.P.
State
Cooperative
Societies Election Commission(hereinafter
referred to as the Election Commission),
Sri Kuldeep Pati Tripathi, learned counsel
representing the respondent no.4-District
Cooperative
Federation
Limited,
Bulandshahar and Sri S.P. Singh, learned
counsel for the respondent no.6.

2. By instituting these proceedings,
the petitioner has laid challenge to an order
dated 17.04.2018 passed by the Chief
Election
Commissioner(Cooperative
Societies), whereby the elections of District
Cooperative
Federation
Limited,
Bulandshahar(hereinafter referred to as the
society),
which
were
notified
on
16.02.2018, were postponed.

3. Submission of learned counsel for
the petitioner, impeaching the impugned
order, is that once the election process had
commenced
by
way
of
issuing
the
notification dated 16.02.2018, the Election
Commission or for that matter any other
authority of the State Government does not
have any jurisdiction to postpone the
election process. It has also been argued by
learned counsel appearing for the petitioner
that as per the notification issued on
16.02.2018
by
the
Chief
Election
Commissioner himself, the entire time
bound programme was notified wherein
deadlines were given for various purposes
98 INDIAN LAW REPORTS ALLAHABAD SERIES
including for the purpose of publication of
provisional
electoral
college,
filing
objection to such provisional electoral
college and publication of final electoral
college. He has further stated that as per the
said schedule, the date on which the final
electoral college was to be published was
16.04.2018 whereas the impugned order
has been passed a day thereafter, i.e., on
17.04.2018 and hence once the final
electoral college was published in terms of
the Election Notification on 16.02.2018
itself, the impugned order could not have
been
passed
by
the
Chief
Election
Commissioner for the reason that the same
amounts to interference in the election
process which had already set in. It has also
been argued by learned counsel for the
petitioner
that
it
was
beyond
the
jurisdiction
of
the
Chief
Election
Commissioner to have acted upon the
complaint which was allegedly enquired
into
by
the
Additional
District
Magistrate(Finance
and
Revenue),
Bulandshahar and was forwarded by the
District Magistrate, Bulandshahar to the
Chief Election Commissioner. Submission
in this regard is that District Magistrate or
Additional District Magistrate(Finance and
Revenue) or for that matter any other
authority of the State Government did not
have any locus to interfere in the election
process once it had been notified and
process of the election had been set in
motion.

4. On the other hand, it has been
argued by Sri Gaurav Mehrotra, learned
counsel for Election Commission and Sri
S.P. Singh, learned counsel for the
respondent no.6, learned State Counsel and
Sri Kuldeep Pati Tripathi, learned counsel
representing the respondent no.4, in unison
that in terms of the provisions contained in
Section 29 (3) of the U.P. Cooperative
Societies Act, 1965(hereinafter referred to
as the Act of 1965), the Election
Commission has all the authority and
jurisdiction to postpone the election process
or to cancel the same for the reason that it
is
a
duty
cast
upon
the
Election
Commission to ensure that free and fair
poll takes place for constituting Committee
of Management of every cooperative
society throughout the state of Uttar
Pradesh.

5. We have considered the rival
submissions made on behalf of the
respective parties and have also perused the
records available before us. The issue/
question which falls for our consideration
and decision is as to whether once election
process commences and a notification for
the said process is issued by the Chief
Election
Commissioner,
whether
any
interference is legally permissible either by
way of postponing the elections or
cancelling the same by the Chief Election
Commissioner on the ground that certain
irregularities have been found in the
electoral list.

6. It is not in dispute that by means of
the notification dated 16.02.2018 issued by
the Chief Election Commissioner, the
election
of
the
cooperative
society
concerned, which is a central cooperative
society in terms of Section 2(d)(3) of the
Act of 1965, was notified and as per the
said notification various dates were fixed
for completing the process of election
including the date and time for publication
of tentative electoral list, for filing
objections against tentative electoral list
and for publication of final electoral list, on
the basis of which in terms of the said
notification the election was to be held. As
per the said schedule, the last date for
publication of the final electoral list was
7 All. Rishipal Sharma Vs. State of U.P. & Ors.
99
16.04.2018 which was to be published
between 2.00 p.m. to 4.00 p.m. However,
the Chief Election Commissioner on the
next date, i.e., 17.04.2018 postponed the
elections on the basis of certain letter
received from the District Magistrate which
was based on the report submitted by the
Additional District Magistrate(Finance and
Revenue), Bulandshahar.

7. So far as the submission of learned
counsel for the petitioner that once election
process is set in motion, the district
authorities or for that matter or any other
authority of the State Government did not
have any jurisdiction to interfere in the
same is concerned, we may point out that
some enquiry report has been submitted
based on which the letter has been written
by the District Magistrate, Bulandshahar to
the Chief Election Commissioner. The
same in our considered opinion would not
amount to any interference in the election
process rather the report and the letter of
the Additional District Magistrate and the
District Magistrate concerned will only be
a material on the basis of which the Chief
Election Commissioner is empowered to
take appropriate decision to ensure free and
fair polls.

8. So far as the submission of learned
counsel for the petitioner that even the
Chief Election Commissioner does not
have any authority or jurisdiction or power
to interfere in the process of election once
it has been set in motion, is concerned, we
may indicate that in tune with the
constitutional provisions available in part
IX-B of the Constitution of India which
was added by way of Amendment Act 2011
w.e.f. 15.02.2012, provisions contained in
Section 243ZK of the Constitution of India
provides that the election of a board shall
be conducted before the expiry of the term
of the board so as to ensure that the newly
elected members of the board assume office
immediately on the expiry of the term of
the office of members of the outgoing
board. Sub-section 2 of Article 243ZK
clearly mandates the state legislatures to
enact a law for the purposes of creating an
authority or body for the superintendence,
control, direction and preparation of the
electoral rolls for and the conduct of all
elections to a cooperative society.The
Election Commission, thus, owes its
existence not only to the State Legislation
but also to Article 243K of the Constitution
of India.

9. The Election Commission in the
State
of
U.P.
for
the
purpose
of
superintendence
and
other
ancilliary
functions including revision of electoral
rolls can be found defined in Section 2(j) of
the Act of 1965. Section 29(3) of the Act of
1965 provides that election to re-constitute
a committee of management of every
cooperative society shall be completed in
the
manner
prescribed,
under
the
superintendence, control and direction of
the
Election
Commission.
It
further
provides that such election is to be
conducted at least 15 days before the expiry
of
the
term
of
the
committee
of
management and that of the members.
Thus,
provisions
of
part
IX-B
of
Constitution of India read with the
provisions contained in the Act of 1965
clearly mandate that election of member of
the society ought to take place before the
term of the outgoing member of the
committee of management expires.

10. We may also notice that Article
243ZK (2) of the Constitution of India
clearly mandates that by providing a law
superintendence, direction and control of
the preparation of electoral rolls and
100 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct of all elections to the cooperative
society is to be vested in a body, which in
the State of Uttar Pradesh, has been
constituted as Election Commission for
the Cooperative Societies. The words,
'Superintendence',
'Direction'
and
'Control'
not
only
in
respect
of
preparation of electoral rolls but also for
conduct of elections vest very wide
powers in the Election Commission. We
have no hesitation to observe that in so
far as ensuring free and fair elections of
the cooperative society for the state of
Uttar Pradesh is concerned, the Election
Commission by virtue of article 243ZK
(2) of the Constitution of India and
subsection 3 of section 29 of the Act of
1965 is vested with almost plenary
powers, which in our considered opinion
will
include
the
authority/
power/
jurisdiction to postpone the election or
even to cancel the election. However the
condition precedent for exercising of
such power or authority is that the
purpose of postponement or cancellation
of an election should be to ensure free
and fair polls. Such authority is since all
encompassing hence is to be exercised by
the Election Commission/ Chief Election
Commissioner very sparingly and only to
achieve the object of conducting free and
fair elections. Exercise of such powers
cannot be permitted to be resorted to in a
routine
manner.
The
Election
Commission and the Chief Election
Commissioner has to bear in mind that
though the Election Commission is an
authority created by the statute and
entrusted with very important function,
however it has to act only for the purpose
for which it has been created, namely, for
superintendence,direction and control of
preparation of electoral roll and also
conduct of elections. Conduct of elections
of a democratic institution in a free and
fair manner is one of the most significant
and important facet of a democratic
polity.

11. We have already noticed that the
statutory mandate as available in Article
243ZK as also under section 29 of Act of
1965 is that Committee of Management
needs to be constituted before expiry of the
term of the out-going committee of
management.

12. In the instant case, the Chief
Election
Commissioner
has
exercised
powers vested in him under Section 29(3)
read with Article 243 ZK(2) of the
Constitution of India while passing the
impugned order dated 17.04.2018. It has
been stated by learned counsel appearing
for the Election Commission that the report
of the Additional District Magistrate which
was sent by the District magistrate to the
Chief Election Commissioner related to
illegal electoral roll, which is said to have
been prepared in derogation of the order
passed by this court on 09.04.2018 in Writ
Petition No.10053 of 2018.

13. Be that as it may, based on some
material, sufficiency of which cannot be
gone into under Article 226 of the
Constitution of India, if the Election
Commissioner
or
Chief
Election
Commissioner comes to a conclusion that
permitting the elections on the basis of
illegal or incorrect electoral roll will not be
in the interest of free and fair elections, in
our considered opinion in such a situation
the Election Commission/ Chief Election
Commissioner exercising his ancillary
powers is empowered and has jurisdiction
to postpone or even to cancel such election.
At this juncture, we may also notice that
District Magistrate is not an alien to the
election process for the reason that in terms
7 All. Rishipal Sharma Vs. State of U.P. & Ors.
101
of Rule 2(j) of U.P. State Co-operative
Societies Election Rules 2014, he is the
District Cooperative Election Officer. Thus,
District Magistrate in his capacity as
District/ Election Officer is part of the
election commission itself and hence if he
makes any complaint or submits any cogent
material on the basis of which Chief
election commissioner forms an opinion
that permitting elections to go on would not
be in the interest of free and fair polls,as
observed
above,
the
Chief
Election
Commissioner has the authority to take
decision either to postpone or even to
cancel the election process.

14. For the reasons as aforesaid, we
are satisfied that the impugned order dated
17.04.2018 passed by the Chief Election
Commissioner does not suffer from any
illegality, much less any jurisdictional error
as such it does not call for any interference
by us in this writ petition.

15. At this juncture learned counsel
for the petitioner insists that the petitioner
was elected unopposed pursuant to the
election
programme
declared
by
notification dated 16.02.2018 as such even
if the elections are to be held now, the same
should commence from the stage it was
postponed by means of the impugned order.

16. The aforesaid submission of
learned counsel for the petitioner in our
considered opinion is not tenable for the
reason that, the proviso appended to
Section 29 of Act of 1965 provides that
where Election Commission is satisfied that
circumstances exists which render it
difficult to hold the election on the date
fixed, it may postpone the election and all
proceedings pertaining to the election shall
commence afresh in all respects. It is this
power vested in the Election Commission
under the said proviso appended to section
29(3) of the Act that vests jurisdiction in
the chief election commissioner/ Election
Commission to postpone the election and
hence in our considered opinion the
impugned order dated 17.04.2018 is
referable to the said provision apart from
the provision contained in Article 243-Z-K
of the Constitution of India. The proviso
clearly says that if for some reason
elections were postponed then subsequent
election is to commence afresh in all
respects. The occurrence of the word in "all
respects" would clearly mean that entire
process of election is to be commenced de
novo.

17. Rule 432 of U.P. Cooperative
Societies Rules 1968 provides that if for
any reason election of any cooperative
society gets disrupted by the district
magistrate or by the election officer, the
process of election shall commence from
the stage at which it was disrupted or from
the stage prior to that or denovo as the
Registrar may decide. The aforesaid
provision of Rule 432 vests the discretion
in the Registrar to decide the stage from
which the elections are to be held.
However, we may only note that the
provision
contained
in
the
proviso
appended to section 29(3) of the Act of
1965 will prevail over the said provision as
the rules are only subordinate to the
Principle Legislation which cannot override
the provision of the Act under which the
Rules have been framed. It is also to be
noted that Rule 432 was inserted in U.P.
Cooperative Societies Rules 1968 on
15.07.1994 i.e. prior to the provisions
which have been inserted in the 1965 Act
on the enactment of Part IX-B of the
Constitution of India. It is also to be
noticed that in tune with part IX-B of the
Constitution of India, the state legislature
102 INDIAN LAW REPORTS ALLAHABAD SERIES
has also amended the provision of 1965 Act
on 28.03.2013 by Act No.13 of 13.

18. In view of the aforesaid,
submission of learned counsel for the
petitioner that election of the society should
be held from the stage it was disrupted by
issuing the impugned order, is highly
misconceived.

19. The writ petition is, thus, hereby
dismissed.
----------
(2022)07ILR A102
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DINESH PATHAK, J.

Writ C No. 15363 of 2022

M/s BCITS Pvt. Ltd., Bangalore
 ...Petitioner
Versus
Purvanchal Vidhyut Vitaran Nigarm Ltd.,
Varanasi & Anr. ...Respondents

Counsel for the Petitioner:
Sri Prashant Chandra (Senior Adv.), Sri
Kartikeya Dubey, Sri Ujjwal Satsangi

Counsel for the Respondents:
Sri Udit Chandra

A. Civil Law - Blacklisting of Door to Door
Meter Reading Contract -Issuance of
show cause notice - Opportunity of
hearing - Fairness - Earlier two time
notice were issued and after filing of
explanation the notices were dropped -
IIIrd
notice
was
issued
with
the
observation that the explanation of the
company was found unsatisfactory -
Validity
challenged
-
Held,
the
respondent-Corporation in the impugned
show cause notice has already expressed
its mind that the explanation offered is
unsatisfactory - Even if the petitioner
offers its explanation, it would be an
empty formality and a futile exercise -
Fairness demanded that the respondent
should have taken care to keep their mind
open to the issues while seeking the
explanation. The respondent-Corporation
having already held that the explanation
is not worthy of acceptance, it could not
be treated to be a show cause notice but a
decision already taken. (Para 7 and 8)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Siemens Ltd. Vs St. of Mah. & ors.; 2006 (13)
SCALE 297
2. ORYX Fisheries Pvt. Ltd. Vs U.O.I. & ors.;
2010 (13) SCC 427
(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Dinesh Pathak, J.)

1. The short issue that arises for
consideration in the instant writ petition is
whether show cause notice issued to the
petitioner seeking explanation as to why it
should not be black listed and debarred
from entering into contracts for next two
years is a valid notice or not.

2. The petitioner-Company was given
contract of "Door to Door Meter Reading,
Bill Generation and Serving through
SBM/Mobile App/Other Suitable Means
with Downloading" by the respondentCorporation on 23.7.2018 for a period of
three years. Subsequently it was extended
for two months more. On 6.06.2020, the
petitioner was issued a notice threatening to
blacklist
it
on
account
of
alleged
irregularities on its part. It was replied by
the petitioner on 19.6.2020 and according