ORDER D.G. Karnik, J.
1. The respondent No. 2 the Multipurpose Society Registered under the provisions of Maharashtra Co-operative Societies Act is neither a specified society nor a notified society. Despite the term of the previous managing committee being over, no elections were held and, therefore, the Registrar appointed respondent No. 4 as an Election Officer for holding the elections of the managing committee of the respondent No. 2 Society. Accordingly the elections were held on or about 24th June, 1998.
2. The learned advocate for the petitioners states that no election rules framed under the Maharashtra Co-operative Societies Act or the Rules framed thereunder in respect of societies which are not specified or notified societies. The procedure of election is governed by the bye-laws of the respective societies, as in the sase of respondent No. 2.
3. The petitioners were elected members of the managing committee in the election held on 24th June, 1998. They had formed a panel and requested the Election Officer to allot them a common symbol. There were in all eleven vacancies which were divided into five groups/categories. Category No. 1 consisted of the borrower members of the society and there were six vacancies in this category. In the second category, there were two vacancies for women. For the remaining three categories viz. non borrower, weaker section and backward class members, there was one vacancy each. All the voters were expected to cast six votes in respect of borrower members category, two votes in -respect of women members category and one vote each in respect of other three categories. The other candidates did not ask for a common symbol, but asked for different symbols as can be seen from the application annexed at page 18 to the petition. Despite this, for the other candidates, who also formed two different panels, two symbols were allotted to them. Symbol "Mango" was allotted to one panel and "Weighing Scale" was allotted to another panel. The petitioners panel was allotted a common symbol, "Umbrella". The panel which was represented by the symbol "Umbrella" was elected.
4. One of the defeated candidates, filed a dispute under Section 91 of the Act bearing dispute No. ACR/558/98 and some other defeated candidates filed another dispute bearing No. ACR/563/98 for setting aside the elections on the ground that the elections were held contrary to the bye-laws of the respondent No. 2 Society. Bye-law No. 11 of the respondent No. 2 Society prescribes the procedure regarding preparation of voters list and allotment of symbols to the candidates. The original bye-laws, are in Marathi. Sub-rule (3) of Rule 11 can be translated as follows:
11(3) When it is necessary to hold elections, the Election Officer shall consider allotment of symbols to the candidates in accordance with the choice mentioned in the nomination paper, and (a) The Election Officer shall allot, as far as practicable as per the choice of the candidates, separate election symbols, (b) If more than one candidate have exercised preference for same symbol, then allotment of such symbol should be determined by drawing a lot. (c) The decision, of the Election Officer regarding allotment of symbols shall be final and binding on all the candidates. (d) Each candidate shall be informed about the symbol allotted to him immediately.
Clause (a) of Sub-rule (3) of Rule 11 of the Bye laws makes it clear that each candidate should be allotted a separate symbol. Clause (b) provides that when the same symbol is requested by two or more candidates, then after determining by lot, only one of them should be allotted that symbol. Thus, the Election Officer clearly erred in allotting one common symbol to all candidates of a panel. Each candidate in a panel ought to have been allotted a separate symbol. In view of this provision, the Co-operative Court hearing the dispute under Section 91, allowed the dispute and held that the election of the respondent No. 2 Society was not held in accordance with the bye-laws and, therefore, quashed and set aside the 'elections. The decision of the Co-operative Court was confirmed in Appeal by the Co-operative Appellate Court by its judgment and order dated 12th December, 2001. This judgment of the Co-operative Appellate Court dated 12-12-2001 is challenged in the present Writ Petition.
5. Shri Raghuvanshi, learned Counsel appearing for the petitioner contended that the judgment of the Co-operative Court as well as of the Cooperative Appellate Court is contrary to the judgment of this Court in the case of Purushottam Yashwant Patil v. State of Maharashtra and Ors., delivered in Writ Petition No. 2444 of 2001, decided on 26th June, 2001 (Since reported in 2002(3) Mh.LJ. 492) (Coram: R. M. S. Khandeparkar, J.). Shri Raghuvanshi invited my attention to the following portion appearing in para 12 of the said judgment.
"As already observed above, bye-law No. 29(VII) of the society clearly permits the petitioners to form a panel and demand a common symbol, for the entire panel. Being so, the impugned order cannot be sustained and is liable to be quashed and set aside, and the petitioners to be allowed to contest the election as a panel on one common symbol."
6. Relying upon this observation, Shri Raghuvanshi contended that it is permissible not only to form a panel but to contest the elections by the entire panel on the same common symbol. This observation made by this Court is clearly based upon bye-law No. 29(VI1) of the said Society. Bye law No. 29(VII) of the Society is quoted in para 8 of the said judgment, which read as follows: Bye-law No. 29(VII) "If a group of candidates form a complete panel for all the seats to be elected demands panel and one symbol by written application authenticated by respective signatories to the returning officer they should be allowed to contest the election by panel provided such application is made on or before the date of withdrawal."
7. Bye-law No. 11 of the respondent No. 2 society is not similar to Bye law No. 29(VIII) of the Society in the above referred petition. On the other hand, bye-law No. 11(3) of the respondent No. 2 - Society specifically provides for allotment of separate symbols, to the candidates. In my opinion, therefore, judgment in W. P. No. 2444/2001 is not applicable to the facts and circumstances of the present case.
8. Shri Raghuvanshi, learned Counsel for the petitioner, contended that it was not enough for the disputant to prove the contravention of bye-law No. 11(3), but it was also necessary for him to allege and prove that the result of the elections were materially affected by reason of allotment of one common symbol to the entire panel. In support of this contention, Shri Raghuvanshi relied upon few judgments of the Apex Court, namely :
(1) Vashist Narain Sharma v. Dev Chandra and Ors., (2) Smt. Lata Devi (Mali) v. Ham Rajwar, (3) Uma Baltav Rath v. Maheshwar Mohanty and Ors.,
9. All these Judgments are given while considering Section 100 of the Representation of the People Act, 1951. It cannot be doubted that the right to contest the election is not a fundamental right but it is a statutory right. The content of the right to contest an election is determined by the Statute creating the right. It is open for the Legislature to provide by a Statute as to how the election should be held, who is eligible to contest the election, what should be the procedure for filing of a nomination paper and allotment of symbols. It is also open for the Legislature to provide as to what would be the grounds on which election can be set aside. Clause (d) of Sub-section (1) of Section 100 of the Representation of the People Act provides that the election can be set aside on account of the grounds mentioned therein, if it is shown that the result of the election, insofar as it concerns a returned candidate, has been materially affected. As distinguished from Clause (d), Clause (c) of Sub-section (1) of Section 100 of the Representation of the People Act does not mandate that the petitioner should prove that the election insofar as it relates to the concerned returned candidate has been materially affected. In para 7 of its judgment in the case of Santosh Yadav v. Narender Singh, , the Apex Court observed :
"Parliament has drawn a clear distinction between an improper rejection of any nomination and the improper acceptance of any nomination. In the former case to avoid an election, it is not necessary to further prove that the result of the election has been materially affected.
10. Thus the contention that for setting aside the election, the petitioner must prove in every case that the result of election has been materially affected is not correct. It is only where the Statute requires that the petitioner should so prove that the petitioner is required to prove that the result of an election has been materially affected. In the present case the Statute does not provide that the disputant must prove that the result of the election has been materially affected. In respect of non specified, and non notified societies, there is no separate election tribunal constituted. The dispute relating to the election is to be tried like any other dispute under Section 91 of the Act. It is not possible to import the concept of Clause (d) of Sub-section (1) of Section 100 of the Representation of the People Act, 1951 in deciding a dispute under Section 91 of the Act and to hold that for setting aside of an election, it is necessary to prove that the result of the election has been materially affected. If there has been any infringement of the bye-laws under which the elections are to be held, then the disputant is entitled to file a dispute under Section 91 and prove the infringement of the bye-laws. If it is proved that the elections have been held contrary to the byelaws, the election can be set aside.
11. In the present case, there is a concurrent finding of fact recorded by the Co-operative Court as well as by the Co-operative Appellate Court that the elections have not been held in accordance with the bye-laws. A single symbol was allotted to eleven candidates, who formed a panel, which is contrary to bye-law No. 11 of the respondent No. 2 Society. The Courts below were, therefore, correct in setting aside the elections.
12. Petition rejected in limine.