JUDGMENT Dharmadhikari B.P., J.
1. By this writ petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 10th June, 2006 passed by the Election Officer for the purpose of holding Election of Specified Society (respondent No. 3), rejecting their objection to the nomination form of respondent No. 2 and accepting the same. This Court has on 3rd July, 2006 issued Rule in the matter and also granted interim relief, whereby the order of Election Officer accepting the nomination paper was stayed. The result of the Election was made subject to the result of the Petition. This order was challenged by the respondent No. 2 in Letters Patent Appeal No. 109/2006, and the Hon'ble Division Bench has on 27th July, 2006 while setting aside the impugned order by consent of the parties continued its interim order and matter has been remanded back to decide the Writ Petition afresh, ignoring one affidavit filed by the respondent No. 2 before this Court. The order dated 13th July, 2006 by which the Election Officer was directed not to declare the result of Election passed in Letters Patent Appeal has been directed to remain in operation till the matter is decided finally by this Court. The learned Single Judge has been requested to dispose of the Writ Petition as early as possible.
2. Civil Application No. 4777 of 2006, filed by the respondent No. 2 for directing the respondent No. 1 Collector to complete the process of counting of votes and also Civil Application No. 4977 of 2006, filed by the petitioners seeking permission to place on record additional documents are found pending. Advocate Gordey, states that as the writ petition is being taken up for final hearing, Civil Application No. 4777 of 2006 becomes infructuous. He further states that the documents along with Civil Application No. 4977 of 2006, may be considered by this Court. Accordingly Civil Application No. 4777 of 2006 is disposed of as infructuous, while Civil Application No. 4977 of 2006, is allowed.
3. The respondent No. 3 - Mahatama Sahakari Sakhar Karkhana Maryadit, Jamni is admittedly a Specified Cooperative Society within the meaning of Section 73G of the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as 'the MCS Act' for short). The Election of Board of Directors of respondent No. 3 are to be conducted by the respondent No. 1 Collector. The present Elections are for the period from 2006 to 2011. The Election program has been published on 3rd June, 2006. Total 17 posts of Directors are to be filled in through this Election. The voters list for the said purpose was finally published on 18th April, 2006.
4. The petitioner No. 1 filed nomination paper from Yelakali Gut, while the petitioner No. 2 filed his nomination from Women category, as per the provisions of Section 73BBB of the MCS Act. The respondent No. 2 also filed her nomination from 'A' class group (Sugar Cane Producers) from Yelakali on 10th June, 2006. She also submitted nomination from the constituency reserved for ladies on the same date. The said nominations were objected and on 10th June, 2006 the Election Officer rejected the objection.
5. Nomination papers of respondent No. 2 were objected on the ground that she is Managing Committee Member of Jijaoo Commercial Cooperative Bank Limited, Amravati. The other objection taken was that she was not resident of Wardha District and was residing in Amravati District. On 12th June 2006, the Election Officer published the list of valid nomination. The petitioner stated that the Election Officer has ignored the provision Bye-law No. 29[3][e] and [f] of the Bye-law of the respondent No. 3 society and the said orders are therefore unsustainable. They also stated that they have produced on record material to show that the respondent No. 2 is Director of Jijaoo Commercial Cooperative Bank Limited, Amravati and she was also Mayor of Amravati Municipal Corporation. It is their contention that therefore the impugned order is unsustainable, and liable to be quashed and set aside.
6. I have heard Advocate K.R. Lambat, for petitioner, Advocate S.A. Gordey, for respondent No. 2 and learned Assistant Government Pleader for respondent No. 1. No body appears for respondent No. 3, though served.
7. Advocate Lambat, after disclosing the facts as mentioned above, has stated that the objection raised by both the petitioners were very specific and it has been rejected only by passing a mechanical order and by assigning frivolous reasons. He states that the petitioners have produced the list of Directors of Jijaoo Commercial Cooperative Bank Limited, Amravati and in it name of respondent No. 2 has been mentioned. He further states that the address of respondent No. 2 at Amravati is also mentioned in it. According to him, in view of the Bye law No. 29[3][e] and [f] of the respondent No. 3 Cooperative Society, the respondent No. 2 ought to have been found to be not eligible to contest the said Elections. He also invites attention to reply filed by the respondent No. 2 before this Court on affidavit, wherein her addressed has been mentioned as resident of Amravati. He points out that the respondent No. 2 filed affidavit before the Election Officer, mentioning therein incorrectly that she is resident of Surgaon, Tahsil Selu, District Wardha. He also invites attention to the extract of the voters list placed on record along with his rejoinder dated 28th June, 2006 to show that name of respondent No. 2 is appearing in voters list for Legislative Assembly of State of Maharashtra from Badnera Legislative Assembly Constituency. He argues that her name does not appear in village Surgeon as voter. He invites attention to Certificate dated 28th June, 2006 issued by the Village Development Officer of Gram Panchayat, Surgaon to substantiate this aspect. He also invites attention to the Bye-laws of Jijaoo Commercial Co-operative Bank Limited, Amravati to state that the respondent No. 2 cannot become member and office bearer of that Co-operative Society unless and until she is resident of Amravati. He argues that the respondent No. 2 has been elected as Mayor of Amravati Municipal Corporation, and therefore, she has to be resident of Amravati. According to him the respondent No. 2 has found it convenient to indulge in politics in Wardha District and therefore she has decided to file nomination paper for the Election of Board of Director of the respondent No. 3. He argues that this is contrary to the provisions of Bye law of respondent No. 3 Society, and also fraud on the democracy. He states that the respondent No. 3 has sworn incorrect and false affidavit for that purpose. According to him, in such circumstances, this Court has rightly admitted the Writ Petition for final hearing, and hence bar of Election Petition under Section 144T of the MCS Act, is not attracted.
8. In order to demonstrate that interference is possible in such circumstances, he has invited attention of the Court to judgment of the Hon'ble Apex Court reported at K. Venkatachalam v. A. Swamickan and Ors. He has also relied upon the recent Division Bench judgment of this Court reported at Dalsingh Shamsing Rajput v. State of Maharashtra and Ors. to contend that in such circumstances, Election Petition cannot be treated as effacious remedy. He states that it is necessary to check abuse of law by respondent No. 2 and hence Writ Petition is only expeditious remedy available to the petitioner.
9. As against this, Advocate S.A. Gordey, appearing for respondent No. 2 has stated that the dispute whether the respondent No. 2 is resident of Amravati or of village Surgaon in Seloo Tahsil, is a bona fide dispute which raises question of facts and hence Election Petition is the only appropriate remedy. He states that the grounds sought to be raised in present Writ Petition is covered under Rule 81 of the Maharashtra Specified Cooperative Societies (Election to Committee) Rules, 1971 (hereinafter referred to as '1971 Rules' for short). He points out that the respondent No. 2 had resigned from Board of Directors of Jijaoo Commercial Cooperative Bank Limited, Amravati on 26.05.2006 and invites attention to communication dated 31.05.2006 issued by the Manager of the said Bank, the respondent No. 3 in this respect. He states that the Election program in the present matter was published on 1.6.2006 and 3.6.2006. Last date of submitting nomination was 9.6.2006. According to him respondent No. 2 was not on Board of Directors of Jijaoo Commercial Cooperative Bank Limited, Amravati at the time of publication of Election program or even on the last date prescribed for filing of nomination paper.
10. He further argues that the petitioners have filed this petition with oblique motive, only to harass the respondent No. 2. He invites attention to the copy of voters list placed on record by the petitioner to show that in the said list of voters of the respondent No. 3 society, only names are mentioned and address are not at all given. He states that only in case of respondent No. 2 below her name at Sr. No. 82, her address at Amravati has been mentioned by stating that she is presently residing at that address. According to him, this has been mala fidely done and respondent No. 2 immediately made representation to the respondent No. 1 in this respect, and pointed out that it was mischief played by some body.
11. He further states that the respondent No. 2 also pointed out that she is at Amravati only for education of her children and she is not permanent resident of Amravati. He states that the voters list of Badnera constituency does not mean that respondent No. 2 is permanent resident of that constituency. He states that the electric bills are received by the respondent No. 2 at Surgaon in Wardha District in her name and Telephone bills are also received by her at Surgaon. He points out that even a motor vehicle (Tractor), is registered in the name of respondent No. 2 and her address mentioned therein is of Surgaon. He further states that tax of said Tractor is being paid regularly from 1980 onwards till date and in all these documents address of respondent No. 2 is that of Surgaon. He further states that respondent No. 2 is an agriculturist and this fact is not in dispute. He further points out that the respondent No. 2 has also supplied Sugarcane to respondent No. 3 Society and hence she is member. He points out that on 7.6.2006, the respondent No. 3 has given certificate to respondent No. 2 indicating the quantity of sugarcane received by the respondent No. 3 from respondent No. 2 from the year 2001-02 till 2004-05. He also invites attention to the certificate issued by the Gram Panchayat, Surgaon certifying that the respondent No. 2 is resident of Surgaon, and has her house and field property.
12. He also invites attention to the provisions of Schedule - D, Chapter - I of the Bombay Provincial Municipal Corporation Act, to state that in order to become Mayor of Amravati Municipal Corporation, it was not necessary for the respondent No. 2 to be resident of Amravati area. According to him both these facts shows that there is no fraud or mischief on the part of the respondent No. 2 and there is genuine and bonafide dispute as to her residence. He invites attention to the provisions of Section 11 of the MCS Act, and states that if the question of residence of a person in area of operation of society arises, such question is to be decided by the Registrar and his decision is final under MCS Act. He argues that in the facts and circumstances, the issue must be left for adjudication by the competent forum i.e. the Election Tribunal under Section 144T of the MCS Act. He states that the respondent No. 2 is not disqualified at all.
13. In support of his contention Advocate Gordey, has placed reliance upon the cases reported at 1992 (Supp.) Bom. C.R. (N.B.) 101 : 1992 (1) Mh. L.J. 1052 Shivnarayan Amarachand Paliwal v. Vasantrao Vithalrao Gurjar and Ors. Shri Someshwar Sahakari Sakhar Karkhana Ltd. v. Shriniwas Patil, Collector Pune and Ors. (Digambar Sadashiv Ghorpade and Ors. v. Election Registration Officer and Ors. 2002 (2) Bom. C.R. (S.C.) 149 : 2002 (1) Mh. L.J. 659 Shri Sant Sadguru Janardhan Swami v. State of Maharashtra and Anr.
14. Perusal of Bye laws of respondent No. 3 - society reveals that as per Bye-law No. 29 [3] [e], if a candidate contesting the Election is Director or Office bearer of any other cooperative society or Urban Society outside Wardha District, he is not qualified to contest for the post of Director on Board of Directors of respondent No. 3. Similarly, if a person holding land in area of operation of respondent No. 3 and being its member, is residing permanently outside Wardha District on account of his service, profession or business, he is also not qualified as per Clause [f]. The petitioners have relied on these two provisions to support their claim.
15. The order dated 10.06.2006 passed by the Election Officer upon the objection of petitioners shows that in relation to respondent No. 2 being Director of Jijaoo Commercial Cooperative Bank Limited, Amravati, the said Officer has found that no fresh evidence has been produced by the petitioners to substantiate their stand. He has also perused the Annual General Report of Jijaoo Commercial Cooperative Bank Limited, Amravati for the year 2004-05 and noticed that the respondent No. 2 is mentioned as Director in it. However, in view of above finding, he has overruled the objection. Thus it is apparent that when the Annual Report itself reveals that the respondent No. 2 was on the Board of Directors of Jijaoo Commercial Cooperative Bank Limited, Amravati the Election Officer has wrongly rejected the objection by placing the burden upon the petitioners. In relation to the objection about the residence, the Election Officer has found that the petitioners have produced voters list of Badnera Constituency, but it is not certified. He relief upon the certificate issued by the respondent No. 3 on 7.6.2006, which reveals that the respondent No. 2 was sugarcane producer and which mentioned her address as resident of Surgaon. He also accepted the certificate issued by the Gram Panchayat, Surgaon about her residence and also her own affidavit that she is residing at Surgaon. He also found that the voters list mentions the address of respondent No. 2 of Amravati as address. According to him this does not mean that it was her permanent address. Perusal of voters list of 125 Badnera Legislative Constituency (part 36), reveals that it is xerox copy of the certified copy, and the said voters list was published on 18.8.2004 and certified copy has been issued on 27.6.2006. The list clearly mentions name of respondent No. 2 at Sr. No. 1539 and the Election Officer could not have refused to accept and act upon this voters list. The Election Officer has lost sight of the fact that, the respondent No. 2 was shown as one of the Director of Jijaoo Commercial Cooperative Bank Limited, Amravati. Coupled with this fact, the Election Officer could have appreciated the voters list placed on record by the petitioners. Perusal of the bye laws of Jijaoo Commercial Cooperative Bank Limited, Amravati particularly, bye law No. 9 relating to the members shows that a candidate can be admitted as member, if he resides within the area of operation of the Bank or is exclusively engaged in the occupation in the area. Even on the last page of this bye law, a person who is not residing or is not gainfully engaged in any occupation in the area of operation, is held to be disqualified. The bye law are signed by 15 promoters and name of respondent No. 2 is appearing at Sr. No. 5 with her signature against her name on this last page. The respondent No. 2 has not disputed this bye law. The respondent No. 2 has also not shown that she is gainfully employed in Amravati. It is therefore apparent that because she is residing at Amravati she became member of Jijaoo Commercial Cooperative Bank Limited, Amravati.
16. It is a matter of record that the respondent No. 2 was also Mayor of Amravati Municipal Corporation. The affairs of Amravati Municipal Corporation are governed by the Bombay Provincial Municipal Corporation Act, 1949. As per Section 19 of this Act, which contemplates Election of one member i.e. one councilor as Mayor, and Election of another as Deputy Mayor. The councilors have to elect Mayor and Deputy Mayor from amongst themselves in the first meeting, after general Elections. As per Section 9, a person who is not less than 21 years of age and is enrolled in the Municipal Election Roll as voter in a ward is qualified to be a councilor and to be elected either from the said ward or from any other ward. Section 7A states that Assembly Roll for time being in force in relation to different wards in the city shall be the voters roll for each ward. It is therefore, apparent that a person who has got his name in Assembly Roll is voter for the purpose of Bombay Provincial Municipal Corporation Act, 1949. It is also clear that therefore, a person who is ordinarily resident of Amravati can have his name entered in the Assembly Roll. Accordingly the name of respondent No. 2 has been entered in the voters list i.e. 125 Badnera Constituency. In such circumstances, it is apparent that because respondent No. 2 is ordinarily resident of Amravati, her name to be included in that voters list and therefore, she can become councilor and thereafter Mayor of Amravati Municipal Corporation. All these facts are lost sight of by the Election Officer while passing the impugned order on 10.06.2006.
17. In Union of India and Ors. v. Dudh Nath Prasad, the Hon'ble Apex Court found that as the parents of the respondent before it were admittedly residing in Howrah for more than 30 years, they would be treated to be ordinarily residing in that District, and the mere fact that they hold some property in a village in District Siwan in State of Bihar, would not affect their status. Observations in paragraph Nos. 13, 14 and 15 of this judgment are important. The same is reproduced below:
13. The words "reside" has been defined in the Oxford Dictionary as "dwell permanently or for a considerable time to have once settled or usual abode; to live in or at a particular place." The meaning, therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a "considerable time".
14. In Black's Law Dictionary, 5thEdition, the word "reside" has been given the following meaning:
Live dwell, abide sojourn, stay, remain, lodge; to settle oneself or a thing in a place to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present at an element, to inhere as a quality, to be vested as a right.
In the same Dictionary the word 'residence' has been defined as under:
Personal presence at someplace of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently but not necessarily combined with design to stay permanently. Bodily presence and the intention of remaining in a place, to sit down, to settle in a place, to settle, to remain, and is made up of fact and intention, the fact of abode and the intention to remaining and is a combination of acts and intention. Residence implied something more than mere physical presence and something [sic] than domicile.
15. If the two meanings referred to above are to be read along with the word "ordinarily", it becomes clear that a person, before he can be said to be "ordinarily residing" at a particular place, has to have an intention to stay at that place for a considerably long time. It would not include a flying visit of a short or casual presence at that place.
18. In Bhagwan Dass and Anr. v. Kamal Abrol and Ors. the Hon'ble Apex Court while considering the meaning of 'residence' has held that it can be defined to mean - as one who resides in a place or one who dwells in a place for a considerable period. Visit for mere working in certain locality or place of casual visit are held to be different. The observations in paragraph No. 13, of this judgment are important, the same reads as under:
13. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. The advertisement inviting the applications has not defined the same and hence it would be necessary to see that intention of the farmers of the eligibility criteria to understand the true meaning or the sense for which the word 'resident' is used or as to why the criteria of resident is put as an eligibility criteria for allotment of LPG. In the present case the intention of the farmers appears to be to provide employment or source of earning for the residents of the Kangra District in the form of LPG dealership/distributorship. The eligibility criterion requires the person to be a resident of Kangra district only in the actual sense and not in any other sense. What is required to fulfil the eligibility criteria of the residence is that the person should be a de facto residence and not to have the mere connection with the place on account of her husband having some personal and ancestral property in Kangra. There is no finding recorded by the Court that the husband of respondent No. 1 is permanently abode in Kangra. From the finding arrived at by the High Court it can be said that her husband having ancestral property in kangra is a visitor to that place and occasionally resides there for a few days. Respondent No. 1 prima facie appears to be a permanent resident of Mandi since her name appears in the voters list of Mandi and that she has been drawing her ration from Mandi as per the case set up by the appellants. It is further clear that the intention of providing employment and source of earning to the residents of the place would be fulfilled only if the person is actually living in Kangra and not by his/her remote connection to the place. It may also be seen that another eligibility criteria is that the person should not be a partner or having any dealership or distributorship agency in any petroleum company and, therefore, the dealership/distributorship has to be allotted to the person who does not hold any other dealership at a particular place have to be handled by that person, which would necessarily require the personal presence of that person at the place of business. The notice of intent issued to the respondent No. 1 on March 3, 1988 further clarifies this requirement when it says that the dealer is to be a full time working dealer which necessitates the permanent residence at a place for which the dealership license is given. When the agency requires full time working dealer it would be only possible if the person actually resides in Kangra district and not working through agent or servants engaged for the said purpose. This further indicates that the dealer is required to be a de facto resident of the place from where the dealership license is to be issued and it is not permissible to have casual connection or temporary residence at that place.
From this observation it is apparent that the Hon'ble Apex Court found that the husband of respondent No. 1, was not permanently residing at Kangra, and her husband was having ancestral property at Kangra and he visited that place as a visitor and occasionally resided there for few days. The Hon'ble Apex Court observed that the respondent No. 1 prima facie appears to be resident of Mandi, since her name appeared in the voters list of Mandi and she was drawing her ration from Mandi. It is to be noted that in the facts of present case, the respondent No. 2 has apart from producing certificate from Gram Panchayat in relation to her residence, has also produced a certificate of registration of motor vehicle, some telephone bills and electricity bills. However, she has not produced any voters list or ration card of village Surgaon to show that she is resident of village Surgaon.
19. In A.I.R. 2000 Allahabad 166 Ku. Rakhi and Anr. v. 1st Additional District Judge and Ors. while considering the provision on Section 371 of Succession Act, and noticing that the application has to be filed at a place where the deceased ordinarily resided, the learned Single Judge has made the following observations in paragraph No. 34.
34. That, apart such application is to be filed within the jurisdiction of the District Judge where the deceased ordinarily resided. In the present case, both the courts below have found that the death took place at Kanpur where he was on account of his treatment. Admittedly, the deceased was posted at Allahabad. He was a railway employee and used to be transferred from one place to other. Thus Kanpur where the deceased had been staying for the purpose of his treatment cannot be said to be his place or ordinary residence. He had been to Kanpur for his treatment which is for a particular purpose which is not an ordinary purpose. An ordinary resident means that he had resided voluntarily and ordinarily and not for any particular purpose. Admittedly, the address of the deceased was at Firozabad. This was shown in the record of his service. The document contained in Annexure - 9 to this petition also mentions the address of the deceased at Firozabad. Thus from the document, on which the petitioner had intended to rely, disclosed that the deceased was an ordinary resident of Firozabad which was his permanent or fixed place of abode. Therefore, his stay at Kanpur at the time of his death for the purpose of his treatment cannot be treated to be his ordinary residence or that the deceased used to ordinarily reside at Kanpur at the time of his death within the meaning of Section 371 of the Succession Act. On that ground it cannot be contended that the Courts at Firozabad did not have the territorial jurisdiction. Though the deceased was at Kanpur for the purpose of his treatment or fixed place of abode, is to be taken as the place of his ordinary residence. It is claimed by the applicant that she has resided with him at Firozabad while it is claimed by the petitioner that she had resided with him at Firozabad, though on account of his employment, he used to be posted at diverse place. By reason of entertainment of the application by the Courts at Firozabad, it cannot be said that it had inflicted any injustice on the petitioner.
From the discussion above, it is apparent that when the respondent No. 2 became Promoter of Jijaoo Commercial Cooperative Bank Limited, Amravati or contested Elections and became Mayor of Amravati Municipal Corporation, it cannot be said that she is not ordinarily resident of Amravati. It is further clear that she is therefore not permanent resident of Surgaon.
20. In this respect reference can be made to the affidavit which respondent No. 2 has filed along with her reply before this Court. In the said affidavit dated 11.08.2005, she has stated that she has been using two names and Sou. Kisan Umesh Mahalle and Sou. Sandhya Ravindra kumar Mahalle, were both of her names. In that affidavit she has given her address of Amravati only. On the very same date her husband also appears to have sworn similar affidavit mentioning therein that he has been using two names i.e. either as Umesh or Ravindrakumar. In the said affidavit also his address given is of Amravati only.
21. The fact that the respondent No. 2 has not placed on record any ration card or voters list showing her as resident of Wardha District is already mentioned above. The petitioners have along with their Civil Application placed on record certificate dated 28.6.2006 issued by the Village Development Officer of Gram Panchayat, Surgaon. He has mentioned that her name does not appear in the voters list of village Surgaon. The respondent No. 2 has not disputed this document and she has also not stated that at any time in the past her name or name of her husband was appearing in voters list of village Surgaon in Wardha District. It appears that the respondent No. 2 got some house at village Surgaon and agricultural land at village Surgaon. The house or agricultural land may have electric connection and also telephone connection. But that by itself is not sufficient to hold that the respondent No. 2 is ordinary resident of village Surgaon in Wardha District. The perusal of Bye law No. 29[3][f] of respondent No. 3 clearly shows that the said bye law contemplates this position only. A person holding land and becoming member of respondent No. 2 is not eligible to contest Election if he is permanently residing out of District on account of his service, business or profession. In the facts of this case, it is apparent that the respondent No. 2 is residing at Amravati along with her husband and is resident of Amravati and is not permanent resident of Wardha District. The affidavit dated 11.8.2005 sworn by her husband reveals that he is in service.
22. Advocate Gordey, on behalf of the respondent No. 2 has contended that the dispute of such nature must be left for adjudication by the Election Tribunal under Section 144T of the MCS Act. He has relied upon the various judgments mentioned above. The judgment no doubt support his contention. However, the view taken is in normal circumstances where no such abuse of position or power is pointed out. In (supra), the objection was to the inclusion of certain names in the voters list and those names were deleted by the Collector, as they were not growing sugarcane. The said order was challenged in Writ Petition and this Court held that the dispute related to preparation of provisions voters list which was an intermediate stage in the process of Election and it was felt better to leave it for adjudication before competent forum in substantive Election Petition.
In (supra), objection was to inclusion of names of 284 voters in voters list. The names of petitioners were deleted within time and after following the procedure prescribed by law. The Hon'ble Division Bench, noted that grievance can be made about wrong omission from voters list under Rule 88 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 in Election Petition, if the result is declared and not earlier. The Division Bench dismissed the writ Petition.
In 2002 (2) Bom. C.R. (S.C.) 149 : 2002 (1) Mh. L.J. 659 (supra), the Hon'ble Apex Court has held that preparation of electoral roll is an intermediate state in the process of Election of specified cooperative society and once Election process is set in motion High Court under Article 226 of the Constitution should not stay the continuation of Election process even though there may be some illegalities or breaches of Rules while preparing the electoral roll.
23. The learned Counsel for petitioner further placed reliance upon the recent Division Bench judgment reported at : 2006 (3) Mh. L.J. 592 : 2006 (5) Bom. C.R. (A.B.) 691 (supra), the Division Bench there has found that the respondent No. 5 before it was not eligible to contest Election of the Managing Committee of the Society and if High Court can prevent him from so contesting without obstructing the Election program, it would serve the interest of justice. The Division Bench has observed that Election Petition cannot be termed as equally effacious remedy in such circumstances. Observations in paragraph No. 6 are important. The Division Bench found that 'It will be absurd and ridiculous to the democratic process of Election that a person not eligible to contest is allowed to contest any Election and then efforts are started to dislodge him. We are, therefore, not inclined to feel obstructed by the availability of alternate remedy'.
24. Perusal of Judgment reported at Election Commission of India and Anr. v. Dr. Manmohan Singh and Ors. reveals that the respondent there in preferred claim in Form 6, prescribed under Rule 26 of the Registration of Electors Rules, 1960 for inclusion of his name in 52, Dispur Legislative Constituency. He was called upon to furnish evidence in support of his statement about ordinary residence, thereafter, it was decided to include his name in the said constituency. It appears that the Chief Election Commission thereafter passed an order with specific reference to first respondent and ordered investigation in his case in detail. This was questioned by the first respondent by filing Writ Petition in the High Court. The controversy is considered by the Hon'ble Apex Court and it has been observed in paragraph No. 15, that the statement of a holder of a declared office is not always to be accepted as correct. It can be questioned, but only if the Electoral Registration Officer has 'evidence to the contrary'. The Hon'ble Apex Court found that there was nothing with the third respondent, giving indication to the contrary and the statement in Form 1, made by the first respondent could not have been questioned. Section 17 of the Representation of Peoples Act, 1950 mandates that respondent No. 2 cannot enroll herself in more than one constituency. Section 18 bars registration in electoral roll more than once. Section 19 requires respondent No. 2 to be ordinary resident of Badnera (Amravati) constituency for having her name registered. Section 20(1) of the Representation of Peoples Act, 1950 lays down that merely because a person owns or is in possession of residential house, he is not deemed to be ordinary resident of that area. It is therefore, apparent that when the name of respondent No. 2 has been added in Badnera Legislative Constituency Assembly, and the documents is not in dispute, then she has to be permanent resident of Amravati and not of Wardha.
25. The Hon'ble Apex Court in A.I.R. 1999 S.C. 1923 (supra), has observed that Article 226 of the Constitution, is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its power under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In paragraph No. 28 the Hon'ble Apex Court has approved the exercise of jurisdiction by High Court under Article 226, in declaring that the appellant before the Hon'ble Apex Court was not entitled to sit in Tamil Nadu Legislative Assembly with a consequent restraining order on him from functioning as member of Legislative Assembly.
Here, apart from the fact that the respondent No. 2 has got herself elected as Mayor of Amravati Municipal Corporation by accepting to be permanent resident of Amravati, she also because of that status got elected on Board of Directors of Jijaoo Commercial Cooperative Bank Limited, Amravati. It is also clear that she has failed to bring on record any material to show that she is permanent resident of village Surgaon. Merely possessing property at village Surgaon, is not indication of her being permanent resident of that village. It is also to be noted that under Bye law No. 29[3][e], she is not qualified to contest the Elections for post of Director of respondent No. 3, if she is still Director of Jijaoo Commercial Cooperative Bank Limited, Amravati. The respondent No. 2 has produced before this Court a communication dated 31.05.2006, issued by the Manager of Jijaoo Commercial Cooperative Bank Limited, Amravati in which it is mentioned that her resignation from Directorship of that Bank has been accepted on 26.05.2006. However, if this was the fact, she has not pointed out this to the Election Officer, when he passed the impugned order on 10.6.2006.
26. Taking over all view of the. matter, I find that the respondent No. 2 is trying to abuse the process of law in the matter, and is trying to force herself in Wardha District, though she is not permanently residing there, and I find that she is not qualified to be elected as Director of respondent No. 3 in view of the provisions of Bye law No. 29[3][e] and [f]. It is to be noted that as per the Election program, the voting has taken place on 10.07.2006, and result was to be declared on 17.7.2006. It is clear that the result has not been declared, so far in view of the restraining order passed by the Hon'ble Division Bench in Letters Patent Appeal. In view of this findings reached above, I find that, the respondent No. 2 is not eligible and her nomination form ought to have been rejected by the Election Officer. However, the question now is of interference in Election process by this Court. It is to be noted that on 3.7.2006 itself, while issuing Rule, this Court recorded a prima facie finding in this respect and stayed the order of Election Officer accepting nomination paper of respondent No. 2. The Petition has not been disposed of finally on 3.7.2006. The final disposal on 3.7.2006 would have been before the date schedule for polling i.e. 16.7.2006 and it would not have amounted to any interference in Election process. However, it further appears that on 13.7.2006, this Court has permitted polling to proceed and stayed only declaration of result. The Letters Patent Appeal has been finally disposed of on 27.7.2006. Thus a period of more than 1 1/2 month has already expired and the results have not been declared. The Election program is therefore already disturbed.
27. Perusal of judgment of Hon'ble Apex Court in Election Commission of India v. Ashok Kumar and Ors. that bar of powers of High Court in Elections under Representation of Peoples Act, is also not absolute. In paragraph Nos. 15, 16, 17 and 19 it is held as under:
15. The constitutional status of the High Courts and the nature of the jurisdiction exercised by them came up for the consideration of this Court in M.V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd. Goa . It was held that the High Courts in India are superior Courts of record. They have Original and Appellate Jurisdiction. They have inherent and supplementary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of Supreme Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. The following statement of law from Halsbury's Laws of England (4th Edn., Vol. 10, para 713) was quoted with approval:
Prima facie no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular mater is within the cognizance of the particular Court.
16. This Court observed that the jurisdiction of Courts is carved out of sovereign power of the State. People of free India are the sovereign and the exercise of judicial power is articulated in the provisions of the Constitution to be exercised by Courts under the Constitution and the laws thereunder. It cannot be confined to the provisions of imperial statutes of a bygone age. Access to Court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where Statute is silent and judicial intervention is required. Courts strive to redress grievances according to what is perceived to be principles of justice, enquiry and good conscience.
17. That the power of judicial review is a basic structure of Constitution - is a concept which is no longer in issue.
19. However, the Constitution Bench in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi could not resist commenting on Ponnuswami v. Returning Officer, Namakkal Constituency by observing (vide para 25) that the non obstante clause in Article 329 pushes out Article 226 where the dispute takes the form of calling in question of Election, except in special situations pointed out at, but left unexplored in Ponnuswami.
28. Similar view is taken by the Hon'ble Apex Court in judgment reported at Manda Jaganath v. K.S. Rathnam and Ors. of which paragraph No. 16 is important, and the same reads as under:
16. In the very same paragraph this Court, however, demarcated an area which is available for interference by the High Court and the same is explained as follows:
But what is banned is not anything whatsoever done or directed by the Commissioner, but everything he does or directs in furtherance of the Election, not contrary wise. For example, after the President notifies the nation on holding the Elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30, if the later orders returning Officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not Because the Commissioner is preventing an Election, not promoting it and the Court's review of that order will facilitate the flow, not stop the stream. Election, wide of narrow be its connotation, means choice from a possible plurality, monothilic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no Election at all.
Of Course, what is stated by this Court herein above is not exhaustive of a Returning Officer's possible erroneous actions which are amenable to correction in the writ jurisdiction of the courts. But the fact remains such errors should have the effect of interfering in the free flow of the scheduled Election or hinder the progress of the Election which is the paramount consideration. If by an erroneous order conduct of the Election is not hindered then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officers remedy for which lines in an Election Petition only.
29. In the circumstances, I find that the objection of the learned Counsel for respondent No. 2 to the jurisdiction of this Court in the matter, particularly at this stage is misconceived. It cannot be forgotten that the Elections are of a cooperative society and stands altogether on a different footing. The Division Bench of this Court in 2006 (5) Bom. C.R. (A.B.) 691 : 2006(3) Mh. L.J. 592 (supra), has also observed that the Election Petition may not be the effacious remedy in all circumstances. In the facts of the present case, wherein the finding about the residence of respondent No. 2 is already reached and it is found that she was not qualified to contest Election of the respondent No. 3 society, and the time of more than 1 1/2 month has already expired, after the due date as per the Election program, I find that asking the petitioner to fight an Election Petition again on same issue is not in the interest of justice, and also in the interest of respondent No. 3. It will be indirectly permitting the respondent No. 2 to be successful in her design in the matter. In the circumstances, I also find that the argument of the learned Counsel for respondent No. 2 that the Election Officer has to consider the issue summarily, is also misconceived. The Election Officer had adequate records with him and he has passed the order disregarding those records. The contentions advanced that such an issue is to be decided only under Section 11 of the MCS Act, also does not appeal to me. The objection was taken to the nomination paper of the respondent No. 2, pointing out that she is disqualified in terms of the Bye law No. 29[3][e] and [f], and this Court has found that the said objection needs to be upheld to the extent of her not being resident of Village Surgaon in District Wardha.
30. In the circumstances, the order dated 10.6.2006 accepting nomination papers of the respondent No. 2 by the Election Officer are quashed and set aside. The respondent No. 1 shall proceed to hold fresh polling for the Elections in the constituencies in which the respondent No. 2 had submitted her nomination papers i.e. Class 'A' Sugarcane Producers Constituency and Category 5 -Women Category. The fresh polling to be held within 15 days from today, and thereafter, the respondent No. 1 shall arrange to declare the result of the entire Election.
31. Writ Petition is allowed. Rule is made absolute in the aforesaid terms with costs of Petition upon the respondent No. 2.