Purushottam Yashwant Patil And ... vs State Of Maharashtra And Ors.
2001 Latest Caselaw 483 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Leave to amend. Amendment to be carried out forthwith.

2. Heard learned advocates for the parties.

3. Perused the records including the affidavits in reply filed by the respondents.

4. Rule. Rule made returnable forthwith by consent.

5. The petitioners challenge the order dated 14-6-2001 of the returning officer rejecting the application dated 13-6-2001 of the petitioners in relation to demand for common symbol to all the petitioners, who claim to have formed a panel for the election to the managing committee of the respondent No. 3-Jalgaon People's Co-operative Bank Limited. The demand for common symbol has been rejected on the ground that the Rule 26(5)(a) of the Maharashtra Specified Cooperative Societies Elections to Committee Rules, 1971 (hereinafter called as "Committee Rules") does not permit allocation of similar symbol to more than one candidate.

6. Referring to various provisions of law contained in the Maharashtra Cooperative Societies Act 1960 (hereinafter called as "the Act"), the Maharashtra Co-operative Societies Rules 1961 (hereinafter called as "the said Rules") as well as in the Committee Rules and placing reliance upon the decision of the Division Bench of this Court in the matter of Pandurang Hindurao Patil v. State of Maharashtra and Ors. reported in 1983 Mh. LJ. 1081, and on an unreported order of another Division Bench of this Court in the matter of Prabhakar Ramdas Patil and Ors. v. The State of Maharashtra and Ors. in Writ Petition No. 470 of 1991 delivered on 1st February, 1991, it was submitted by the learned advocate for the petitioners that the impugned order is contrary to the provisions of law and more particularly to bye-law No. 29(VII) of the bye-laws of the respondent No. 3 society. According to the learned advocate for the petitioners, the provisions of law contained in the said Act as well as the Rules clearly provide for framing of the bye-laws in relation to mode of election as well as management of the society and accordingly the respondent No. 3 society had framed bye-law No. 29(VII) which clearly permits the members of the society to form a complete panel for the purpose of election to the managing body of the society and demand one symbol for the entire panel i.e. each of the members of the panel and that such bye-law has been duly approved by the authorities without any objection, It is further submitted that the returning officer respondent No. 2 has rejected the application for allocation of common symbol to the panel of the petitioners without even considering the provisions of the bye-law No. 29(VII) apart from the fact that the Rule 26 of the Committee Rules nowhere prohibits the allocation of common symbol to more than one candidate provided that situation does not disclose contest of such candidates against each other. The submissions on behalf of the petitioners are supported by the learned advocate

appearing for the respondent No. 3. On the other hand, the Assistant Government Pleader appearing for the respondent Nos. 1 and 2 has submitted that the phraseology of bye-law No. 29(VII) is vague and is not clear so as to compel the returning officer to allot one symbol for the entire panel of the petitioners. Though similar symbol may be claimed for each of the constituency, considering the fact that 8 members are required to be elected from one single constituency and bearing in mind the provisions contained in Rule 26(5)(a) of the committee Rules. It is not permissible for the petitioners to insist upon common symbol for all candidates contesting for the said 8 seats in one constituency. It was therefore submitted that whenever there are more than 8 candidates contesting in general voters constituency, there has to be election for the said 8 seats and undisputedly in the case in hand there are more than 8 candidates and only first 8 candidates securing maximum votes would be entitled to be declared as elected to those 8 seats. It was sought to be contended that the situation which is contemplated under bye-law No. 29(VII) empowering the members to form a panel and to demand a common symbol relates to different constituencies and it does not refer to more than one seat in the single constituency and therefore, no fault can be found with the impugned order.

7. Before considering the rival contentions, it would be necessary to scan through the relevant provisions of law. Section 8 of the said Act provides that for the purposes of registration of any society in accordance with the provisions of the said Act, an application is required to be made to the Registrar in the prescribed form accompanied by 4 copies of the proposed bye-laws of the society. Section 9 provides that if the registrar is satisfied that a proposed society has complied with the provisions of the said Act and the rules or any other law for the time being in force, or policy directives issued by the State Government under Section 4 and that its proposed bye-laws are not contrary to the said Act or the rules, then he shall within two months from the date of receipt of the application register the society and its bye-laws. Section 13 deals with the provisions relating to the amendment of bye-laws of a Society. Sub-section (1) provides that no amendment of the bye-laws of a society shall be valid until registered under the said Act. For the purpose of registration of an amendment of the bye-laws, a copy of the amendment passed, in the manner prescribed, at a general meeting of the society, shall be forwarded to the registrar. Every application of registration of an amendment of the bye-laws shall be disposed of by the Registrar within a period of two months from the date of its receipt. In terms of Sub-section (IB) of Section 13, no amendment of the bye-laws of a society shall be registered by the Registrar under the said section or in the case of the bye-laws which are deemed to have been registered shall have effect, if the amendment is repugnant to the police directives. If any, issued by the State Government under Section 4. Rule 12 of the said Rules provides that subject to the provisions of the said rules, bye-laws of the society may be amended by passing a resolution at general meeting of the society held for that purpose. Sub-Rule (5) of Rule 12, provides that on receipt of copy of the resolution and other particulars, the Registrar shall examine the amendment proposed by the society and if he is satisfied that the amendment is not contrary to the Act or the rules and is in the interest of the society and co-operative movement, he may register

the amendment and issue to the society a copy of the amendment certified by him under Sub-section (2) of Section 13. Further, Section 73(1) of the said Act provides that the management of every society shall vest in a committee, constituted in accordance with the said Act, the rules and the bye-laws which shall exercise such powers and perform such duties as may be conferred or imposed respectively by the said Act, the rules and the bye-laws.

8. Reading the above referred provisions of law it is apparent that the society has to be governed in accordance with the provisions of law contained in the said Act and the said Rules, the Committee Rules as well as the bye-laws of the society. No doubt, the bye-laws should not be contrary to the said Act and the said Rules as well as the provisions contained therein shall be in the interests of the society and the co-operative movements besides being in consonance with the policy directives, if any, issued by the Government under Section 4 of the said Act. In other words, the bye-laws or the amendments to the bye-laws should not be contrary to the provisions of law contained in the said Act and the rules made thereunder including in the Committee Rules. It is nobody's case nor it is the subject matter of the present petition that the bye-laws including the amended bye-law No. 29(VII) are either contrary to any of the provisions of the said Act or the rules made thereunder or being contrary to the policy directives issued by the State Government under Section 4. Being so, it is not required to address to the issue regarding the legality or validity of the bye-law No. 29(VII) in this petition. Suffice to say that nothing has been pleaded or brought to the notice of this Court to show that the bye-law No. 29(VII) either contravenes any of the provisions of law or is contrary to the policy directives of the Government. If any, issued under Section 4.

8-A. Bye-law No. 29(VII) reads thus :--

"If a group of candidates from 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."

Apparently the bye-law speaks about entitlement of the members of the society to form a group of candidates being a complete panel for all the seats of the managing committee of the society. Having formed such a panel, it further empowers such panel to demand common symbol for all the members of such a panel. Undoubtedly, demand for such symbol, has to be made on or before the date of the withdrawal. On the face of it, the bye-law does not make differentiation between the contestants in different constituencies and the candidates in the same constituency. However, harmonious interpretation of the bye-law would disclose that demand of common symbol is not visualised in case 2 candidates are contesting for the same seat in a constituency. At the same time, if there are more than one seat in one constituency, the bye-law does not prohibit from demanding common symbol for those candidates who prefer to contest for different seats in same constituency. Needless to say that when a panel is formed certainly the contesting candidates from such panel would necessarily be equal to number of seats in a particular constituency. Otherwise very purpose of forming

of complete panel visualised by the said bye-law would be defeated. In any case, in the matter in hand, the number of members of the panel correspond to the total number of seats in the managing committee. There is no vagueness in the phraseology of the bye-law No. 29 (VII).

9. Rule 26(5) of the Committee Rules reads thus :-- "(5) Where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall:--

   

 (a)   allot a different symbol to each contesting candidates in conformity, as far as practicable, with his choice; and  
 

 (b)     if more contesting candidates than one have indicated their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted."  
 

The rule deals with two eventualities in relation to the allotment of symbols to the contesting candidates. Clause (a) deals with the allotment of different symbol to each contesting candidates. Clause (b) deals with the allotment of symbol by way of lot in cases where more contesting candidates indicate their preference for the same symbol. Apparently, the rule does not visualise, all sorts of eventualities nor it provides for all ports of situations. It only provides allotment of different symbols to each of the contesting candidates and in case of demand of similar symbol by more than one contesting candidates then to allot to such symbol to one of the candidates by way of lot. As already seen above, the provisions of law contained, in the said Act and the rules made thereunder, clearly empowers the society to frame their own bye-laws as also to amend those bye-laws as and when they desire to amend the same and only limitation imposed is that such bye-laws should have approval of the Registrar and they shall not be contrary to the provisions of the said Act and the rules made thereunder as well as should not be contrary to the policy directives. If any, issued by the State Government under Section 4. Undisputedly, the bye-laws in the case in hand, particularly bye-law No. 29(VII) was duly approved by the Registrar. It is not the case of the respondents that the same is contrary to the provisions of the said Act and the rules made thereunder or the same is contrary to the policy directives, if any, issued by the Government under Section 4. Undisputedly the rule empowers the members of the society to form a panel and demand a common symbol for the entire panel. Being so, Sub-rule (5) of Rule 26 has to be read along with the bye-law No. 29(VII) of the said society and decision regarding allotment of symbol cannot be taken ignoring the provisions contained in bye-law No. 29(VII) of the Society.

10. The Division Bench of this Court in Pandurang Hindurao Patil's case has observed that Section 73 of the Act statutorily requires that the Managing committee of every society has to be constituted not only in accordance with the Act and the Rules but also in accordance with the bye-law and if Section 73 requires the constitution of a Managing Committee in accordance with the bye-laws also then it obviously casts a statutory obligation on the returning officer to comply with not only the Act and Rules but also with bye-laws. Any decision which is not in conformity with the bye-laws or which is in excess of the bye-laws will clearly result in affecting the constitution of the managing committee

and infraction or violation of the provisions of Section 73 of the Act. The Division Bench was dealing with the important question as to whether the wrongful rejection, or acceptance of a nomination paper by a returning officer appointed for conducting an election of members of a managing committee to be constituted under Section 73 of the said Act can be challenged under Article 226 of the Constitution. The facts of the said case disclose that the nominations filed by the petitioners therein were rejected on the ground that the candidates had failed to make a declaration as contemplated by the Section 48(a) of the said Act. The decision of the Division Bench therefore is on the point that the returning officer while taking decision as regards acceptance or rejection of the nomination papers has to take into consideration the bye-laws of the society and any decision given either in ignorance of the said byelaws or contrary to the bye-laws would result in affecting the constitution of the committee and, therefore, infraction or violation of the provisions of Section 73 of the said Act.

11. Reference is also made, as already observed above, to the order passed by Division Bench in Writ Petition No. 470 of 1991. Indeed the said writ petition was allowed and rule was made absolute in terms of prayer Clause (d) of the petition therein and the prayer Clause (d) of the said petition was to the effect that the petition be disposed of by directing the respondent No. 2 therein to allot a common symbol to all the petitioners therein as symbol of their panel as requested in the application of the petitioners, therein on 25th January, 1991. No doubt, it is only an order and there is no judgment delivered therein and it does not disclose any discussion as regards the rights of the parties. Being so, it does not lay down any law as such as has been held by the Apex Court in various cases including Arnit Das v. State of Bihar , Municipal Corporation of Delhi v. Gurnam Kaur and State of U. P. and Anr. v. Synthetics and Chemicals Ltd. and Anr., reported in (1997) 4 SCC 139.

12. Reverting to the impugned order dated 14-6-2001 it is apparent, as submitted by the learned advocate for the petitioners, it only relates to Rule 26(5)(a) of the Committee Rules. Apparently the returning officer has not at all applied his mind to the matter in issue in the manner he was required. Inasmuch as he has totally failed to take into consideration the provisions of the bye-laws and more particularly bye-law No. 29(VII) of the society. 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.

13. The petition therefore, succeeds. The impugned order is hereby set aside and the rule is made absolute in terms of prayer Clause (d) with no order as to costs.