WP(C) 5768/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who was elected as the Chairman of Kukurmara Samabay Samity Ltd. , a society registered under the provisions of the Assam Cooperative Societies A ct, 1949, (in short the ’Act’), in the Annual General Meeting held on 28.8.2009 and whose election was subsequently approved by the Assistant Registrar, Coopera tive Societies on 31.8.2009 as required under the provision of the aforesaid Act and the Rules framed thereunder, by the present petition, has challenged the or der dated 14.12.2009 passed by the Registrar, Cooperative Societies, Assam setti ng aside his election as Chairman apart from the election of other office bearer s of the Society, while allowing the appeal preferred by the respondent No. 7 un der Section 80 of the said Act, basically on the ground that quite a good number of female voters participated in the election process and cast votes though the Bye law of the Society debars such female members, who are D class members, fro m participating in the election process. 2. Pursuant to the notice issued the Annual General Meeting of the said society was held on 28.8.2009. For the post of Chairman the petitioner and the respondent No. 7 filed nomination, for which the election had to be conducte d. The said election was conducted under the supervision of the Deputy Registrar , Cooperative Societies and the petitioner having secured 1182 votes, which is 1 09 votes more than the respondent No. 7, the petitioner was declared as elected and accordingly the resolution was adopted in the said meeting which was submitt ed to the Assistant Registrar, of Cooperative Societies for approval. The approv al was accorded by the Assistant Registrar on 31.8.2009 approving the resolution of the Annual General Meeting of the Society including the election of the Chai rman. 3. The respondent No. 7 initially approached this Court by filing a writ petition, which was registered and numbered as WP(C) No. 4450/2009 challen ging the election of the present petitioner on two grounds namely (i) the electi on was held on the basis of the incorrect voters list; (ii) the voters list whic h was published on 17.8.2009, last date for filing of the nomination being 18.8. 2009 only one day’s time was given for the purpose of verification of the correc tness or otherwise of the voters list. The said writ petition was disposed of vi de order dated 23.10.2009, in view of availability of an efficacious and alterna tive remedy by way of appeal under Section 80 of the Act. The respondent No. 7, thereafter, preferred an appeal before the Registrar, Cooperative Societies unde r Section 80 of the Act. In due course of time all the concerned parties appeare d before the Registrar, on receipt of the notice and they were heard. The Regist rar by impugned order dated 14.12.2009 interfered with the election of the offic e bearers of the managing committee of the society held on 28.8.2009 including t he election to the post of the Chairman, on the ground that quite a good number of female members, who are D class members of the society, though not entitled t o cast their votes were allowed to cast their votes in the election. 4. I have heard Mr. AK Bhattacharyya, learned senior counsel for th e petitioner, Mr. J Sarma, learned State counsel appearing for the respondent No s. 1 to 5 and Mr. Bora, learned counsel appearing for the respondent No. 6. Also heard Mr. P Sarma, learned counsel appearing for the respondent No. 7, who was defeated in the election held on 28.8.2009 for the post of Chairman of the manag ing committee of the Society. 5. It has been contended by the learned senior counsel for the peti tioner that the respondent No. 7 having not raised any dispute relating to the s mooth conduct of the election and also about the correctness of the voters list published and having submitted two writings one dated 18.8.2009 and the other da ted 28.8.2009, cannot turn around and challenge the election of the petitioner o n the ground that the same was conducted on the basis of an incorrect voters lis t. It has also been submitted by the learned senior counsel that the grounds on which the election of the writ petitioner has been set aside by the Registrar of the Cooperative Societies i.e. participation of D Class members in the election process was never specifically taken either in the representation dated 8.8.200 9 filed by the respondent No. 7 before the Deputy Registrar of the Cooperative S ocieties or in the appeal filed before the Registrar of Cooperative Societies ch allenging the election of the writ petitioner. The learned senior counsel furthe r submits that even if such plea is treated to have been taken, the burden lies on the respondent No. 7 who challenged the election of the writ petition to demo nstrate that participation by such D class members in the election process has m aterially affected the election of the returned candidate, namely the writ petit ioner, which the respondent No. 7 could not do before the Registrar. It has also been submitted that the Registrar Cooperative Societies has set aside the entir e election process including the election of the petitioner to the post of Chair man of the Society without recording any finding as to whether casting of votes by the D class members has in fact materially affected the result of the electio n of the returned candidate. The learned senior counsel further submits that irr egularities in the preparation of the voters list does not per se result in the vitiation of the election and in the instant case as the respondent No. 7 has ac cepted the voters list to be correct by giving the aforesaid two writings, the R egistrar ought not to have interfered with the election of the petitioner as wel l as the proceeding of the Annual General Meeting held on 28.8.2009. The Registr ar’s order, according to the learned senior counsel, amounts to setting aside th e election of all the office bearers whose election were not put to challenge by anyone including the respondent No. 7 and that too without hearing those electe d members to other offices. 6. The learned State counsel appearing for the respondent Nos. 1 to 5 supporting the order passed by the Registrar, Cooperative Societies dated 14. 12.2009, on the other hand has submitted that it is not in dispute that the D cl ass members cannot participate in the election process, in view of the provision s contained in the Bye laws of the Society and hence the Registrar of Cooperativ e having found that such members had participated in the election process and ca st their votes, has rightly interfered with the entire election process as their participation has vitiated the entire election process. Mr. Bora, learned coun sel appearing for the respondent No. 6 also supports the contention of the learn ed State counsel appearing for the respondent Nos. 1 to 5. 7. The learned counsel appearing for the appellant before the Regis trar of Cooperative Societies, who is the respondent No. 7 in the present writ p etition, also supporting the impugned order dated 14.12.2009 passed by the Regis trar has submitted that since it is the requirement under the provision of the A ct and the Rules framed thereunder as well as the Bye laws of the Society that t he election is to be held on the basis of the correct voters list and there bein g a bar imposed by the Bye laws of the Societies on the D class members in parti cipating in the election process, the Registrar of Cooperative Societies has rig htly interfered with the entire election process having found that a large numbe r of D class members cast their votes though not entitled to do so, apart from t he ground that the voters list was not correct as their names appear in such vot ers list. It has also been submitted that though the Registrar in the impugned o rder dated 14.12.2009 did not specifically mention about the number of D class m embers participated in the election process, on reading of the entire order pass ed by the Registrar it is evident that by such participation in the election pro cess the election of the returned candidate has been materially affected. The le arned counsel referring to the averments made in the affidavit-in-opposition fil ed by the respondent No. 7 also submits that the specific averments made therein about participation by 114 D class members in the election process having not b een denied by the writ petitioner by filing the rejoinder affidavit, it has been accepted by the petitioner that at least 114 D class members have participated in the election process and the difference of votes between the two candidates b eing 109 it has definitely materially affected the election of the returned cand idate. 8. I have considered the submissions of the learned counsel for the parties, perused the pleadings and the impugned order dated 14.12.2009 passed b y the Registrar, Cooperative Societies. 9. From the facts narrated above, it is evident that the deference of votes secured by the petitioner and the respondent No. 7, for the post of Cha irman, was 109. The respondent No. 7 being not satisfied with the result of the election filed a representation before the Returning Officer on 28.8.2009, which is available at page 50 of the writ petition, requesting the Returning Officer not to formally declare the result of the election alleging that more than 800 b ogus voters’ names appeared in the voters list and also the names of 300 voters were deleted from the list without any rhyme or reason. On the date of filing of the nomination paper i.e. 18.8.2009 the petitioner, the respondent No. 7 and tw o other contesting candidates submitted a writing to the Returning Officer to th e effect that they do not have any objection relating to the mistake in the vote rs list in mentioning the weaker section and the stronger section. On the date o f the election i.e. 28.8.2009 and after the period fixed for casting of votes wa s over, the petitioner, the respondent No. 7 and three other candidates contesti ng such election also informed the Returning Officer in writing that there were no anomalies in the election which was conducted fairly. The respondent No. 7, h owever, after the counting was over, filed the aforesaid representation dated 28 .8.2009 requesting postponement of declaration of the result of the election on the ground as already noticed above. In the appeal petition filed by respondent No. 7 before the Registrar of Cooperative Societies challenging the election of writ petitioner plea has been taken that the names of dead persons have been in cluded in the voters list, voters list was defective and the persons who were no t entitled to cast their votes in fact cast their votes in the election process. It may be noticed at this stage that no one including the respondent No. 7 chal lenged the election of the other office bearers of the Managing Committee of the Society which was held on 28.8.2009. 10. The Registrar of Cooperative Societies by the impugned order dat ed 14.12.2009 did not accept the contention of the respondent No. 7 that the nam es of the persons who are dead were included in the voters list or any under age d persons were included in the voters list. Such pleas were raised by the respon dent No. 7, as it is evident from the impugned order dated 14.12.2009. The only ground on which the entire election process, which includes the election of the other office bearers of the managing committee of the Society including to the p ost of the Chairman, has been interfered with, is that though under the Bye laws of the society D class members cannot cast their votes in the election process, quite a good number of female voters participated in the A.G.M. and cast vote in the election of the Society . It is not in dispute that the female voters are D class members of the society. The Registrar of the Cooperative Societies, the refore, has set aside the election on the ground of inclusion of D Class voters’ names in the voters list and numbers of such voters cast their votes in the ele ction held, without, however, making any enquiry as to whether casting of votes by such members has materially affected the election of the returned candidate. 11. The election to an office, which is a democratic process, cannot be interfered with lightly. Whenever any election is challenged, the burden lie s on the person challenging such election to prove that the election was vitiate d because of the infraction of law or for any other reason. It is no doubt corre ct that under the provision of the Act and the Rules framed thereunder, an elect ion is to be held on the basis of a correct voters list. Such voters list whenev er published must be presumed to be valid and correct unless of course it is dem onstrated otherwise. 12. In the case in hand, it is evident from the impugned order that though there was allegation relating to casting of votes by the D class members in the election process conducted on 28.8.209, the respondent No. 7 who challeng ed the election of the petitioner could not demonstrate how many such D class me mbers cast their votes in such election, to record a finding as to whether casti ng of votes by such D class members has materially affected the election of the returned candidate. The burden being on the respondent No. 7, who has challenged the election of the petitioner, he has to discharge such burden, which he has f ailed to do. 13. The contention of the learned counsel for the respondent No. 7 t hat the averments made by the said respondent in the affidavit that 114 D Class members cast their votes in the election process having not been denied by the w rit petitioner by filing an affidavit amounts to acceptance that the election of the returned candidate has been materially affected, cannot be accepted as the same is required to be proved before the appellate authority, which he could not do. 14. The Registrar of Cooperative Societies has also set aside the en tire election process including the election of the other office bearers of the society though their election was not put to challenge by any body including the respondent No. 7 and they were even not heard before passing such order. 15. In view of the above, the impugned order dated 14.12.2009 passed by the Registrar is set aside. 16. The writ petition is allowed. However, keeping in view the facts and circumstances of the case, the parties are directed to bear their own cost.