Dalsing S/O Shamsing Rajput vs State Of Maharashtra And Ors.
2006 Latest Caselaw 273 Bom

JUDGMENT

N.V. Dabholkar, J.

1. Heard learned advocate Shri V.D. Hon, for the petitioner, learned AGP Shri Ghute Patil, for respondent Nos. 1 to 3, and learned advocate Shri V.B. Patil, for respondent No. 4.

Respondent No. 5 is served and absent. He is absent in spite of specific directions vide our order dated 10-3-2006 asking him to remain present in person along with documentary evidence regarding his membership of the Society which is going to polls on 26-3-2006. After order dated 10-3-2006, the matter was on board on 14-3-2006. Even on that day, respondent No. 5 had not appeared. Today, neither respondent is present, nor he is represented by lawyer of his choice. Hence, we are dealing with the matter in the absence of respondent No. 5.

2. Admittedly, Shrikrushna Takli (Bk) Vividh Karyakari Seva Sahakari Society Limited, Takli, Taluka Jamner, District Jalgaon is an ordinary Society (it is neither Specified Society nor Notified Society). The election programme for the election of Managing Committee of the said Society is published by respondent No. 4 who is appointed as Election Officer by the resolution of the said Society. Copy of the election programme is at Exhibit-B. According to election programme, 24-2-2006 was the last day for filing nomination, 25-2-2006 was the date fixed for scrutiny of nominations and list of eligible and valid contestants was to be published on 25-2-2006. We are informed by learned advocate Shri V.B. Patil representing the Election Officer - respondent No. 4 that the list is accordingly published which includes the name of respondent No. 5, respondent No. 4 having rejected the objection raised by the petitioner against nomination of respondent No. 5. Respondent No. 5 has not withdrawn his nomination within the time frame fixed for the same, last day for which was 12-3-2006. Consequently, final list of contesting candidates is ready and published on 13-3-2006. The Society is to go for polls on 26-3-2006 and counting and result are to take place on the same day after 5 p.m.

Since petitioner has challenged nomination of the respondent No. 5 by contending that respondent No. 5 is not in the voters list, thereby impliedly indicating that respondent No. 5 is not at all a member of the Society, and therefore, he cannot contest the election, we had passed specific order on the day we ordered notice. The relevant portion of the order is required to be reproduced for proper appreciation and decision over the controversy. The relevant portion reads as follows :

5. The only contention which is required to be taken a serious note is that respondent No. 5, although neither member of the Society nor a voter of the Society, which is going for the polls, had filled his nomination....

6. We fix the date of notice returnable on 14th March, 2006. Notice to respondent No. 5 should specifically direct him to remain present in the Court with requisite proof (documentary) of his being member/voter of the Society in question.

In spite of service with such specific directions, respondent No. 5 has preferred to remain absent instead of attending the Court and presenting the proof of his being a member/voter of the Society, (we have ascertained from the record that respondent No. 5 is served not only with ordinary Court notice, but the same was accompanied by a copy of our order dated 10-3-2006). Since respondent No. 5 has not remained present and has not controverted the contention of the petitioner that was prima facie accepted by this Court that he is not a member/voter of the Society, the contention of the petitioner stands proved by the rule of non-traverse. Hereon, we proceed on the presumption that respondent No. 5 has practically no link with the Society in question, neither he is a member nor he is a voter of the Society.

3. The writ petition is contested by respondent No. 4 and Shri V.B. Patil, learned advocate for respondent No. 4 has tried to justify the decision of respondent No. 4 accepting the nomination of respondent No. 5 as valid nomination and accepting respondent No. 5 as person eligible to contest the election for the Managing Committee of the Society. Shri Patil has raised following contentions while contesting the writ petition.

(i) The Co-operative Society not being a State, the writ petition is not maintainable because this Court cannot issue any writ against Co-operative Society;

(ii) Since petitioner is also a contesting candidate, he has alternate remedy available in the form of Election Petition and therefore, petition need not be entertained; and

(iii) In the light of Rule 56(M)(1) of the Maharashtra Co-operative Societies Rules, 1961 as contained in Chapter V-A of the Maharashtra Cooperative Societies Act, 1960 read with Section 73-B of the said Act, it is not necessary for respondent No. 5 to be a member of the Society for being a candidate for the Managing Committee of the Society.

Needless to say that learned advocate Shri V.D. Hon for the petitioner has opposed all the contentions.

4. So far as the contention of learned advocate Shri V.B. Patil that the Cooperative Society not being a State, this Court cannot issue any writ against the Society, we are in a position to dismiss the contention with a simple reply. If at all we arrive at a conclusion that respondent No. 5 is not a person eligible to contest the election for the Managing Committee of the Society, because he is neither a member nor a voter of the Society, the relief prayed by the petitioner can be granted by mandating respondent No. 5 not to contest the election. We are not required to issue a writ to the Co-operative Society in order to grant relief prayed by the petitioner. The relief can suitably be modified within the powers available to us even if we accept the contention of learned advocate Shri Patil that under Article 226 of the Constitution of India, no writ can be issued against a Co-operative Society. Shri Patil had supported his argument by relying upon the observations in the decision of this High Court in the matter of Ashok Keshavrao Sonar v. State of Maharashtra and Ors. reported in 2002(5) Mh.LJ, 351 -2002 C.T.J. 23. We need not go into many more issues of facts to distinguish between the decision relied upon by Shri Patil and the matter before us, but we may point out only two distinguishing features. The matter of Ashok Sonar was pertaining to a Co-operative Bank which is a Specified Society, whereas we are dealing with a Society which is a ordinary society i.e. neither Specified Society nor Notified Society. Secondly, in the reported matter, the polling had already taken place by the time we were dealing with the matter under Article 226. In the matter at hands, the Society is to go for polling on 26-3-2006.

5. So far as contention on behalf of respondent No. 4 that the Co-operative Society not being a State, this Court cannot issue a writ under Article 226, we may usefully reproduce relevant part of Article 226 itself:

226. Power of High Courts to issue certain writs. -- (1) Notwithstanding anything in Article 32, [***] every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.]

(2) ***

(3) ***

(4) ***

(emphasis added)

The text indicates that writs can be issued not only against State, but also against an authority or any person. It also indicates that writs can be issued for enforcement of any of the rights conferred not only by Part III of the Constitution of India, but also for any other purpose. We shall be in a position to issue writ against respondents No. 4 and 5 in their capacity as an authority and individual, respectively. This is a view which can be supported by observations of the Supreme Court in the matter of Gayatri De v. Mousumi Co-operative Housing Society Limited and Ors. reported in 2004 AIR SCW 2656. The Supreme Court has observed thus --

The Special Officer is appointed under the provisions of the Act and as such he is a statutory officer and, therefore, he should be regarded as a public authority. Apart from that Article 226 of the Constitution is not confined to issue of writ only to a public authority, the bar extends also to issue directions to any person. In a case where the Co-operative Society is under the control of a Special Officer, a writ would lie.

(emphasis added)

We therefore, do not feel obstructed in entertaining writ petition and granting the relief if the same is warranted by factual details, by the arguments of learned advocate Shri V.B. Patil that no writ can be issued against a Co-operative Society or that Co-operative Society is not a State as defined by Article 12 of the Constitution of India.

6. It is the contention of learned advocate Shri V.B. Patil that petitioner being contesting candidate, Election Petition is alternate remedy available to the petitioner. Even for supporting this argument, he has placed reliance upon Clause (d) as contained in head notes of the decision in the case of Ashok Sonar v. State of Maharashtra (supra). We have already pointed out factual distinction between the reported judgment and the matter before us. Said Clause (d) itself indicates that in the reported matter, polling had already taken place whereas in the matter at hands, Society is yet to enter the polling only on 26-3-2006. If at all respondent No. 5 is not eligible to contest the elections to the Managing Committee of the Society, and if we can prevent him from so contesting without disturbing the election programme, we feel that the same will serve the interest of justice. Election petition cannot be termed as equally efficacious remedy in the present fact situation. 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. In fact, we are of the considered opinion that the alternate remedy suggested by learned advocate Shri V.B. Patil is certainly not equally efficacious remedy in the present matter.

7. Both contentions of learned advocate Shri V.B. Patil, which are rejected by us as not sustainable, would stand rejected only if we arrive at a conclusion that respondent No. 5 is not a person eligible to contest election of the Society in question according to the Statute for the Co-operative Societies. Both the learned lawyers have placed relied on Section 73B and more particularly, Sub-section (3) of the same. Learned advocate Shri V.B. Patil has added emphasis by relying upon Rule 56M as contained in the Maharashtra Co-operative Societies Rules, 1961. Relevant portion of Section 73B of the Maharashtra Co-operative Societies Act, 1960 reads thus:

73B. Reservation of seats on committees of certain societies for Scheduled Caste, Scheduled Tribes [or Other Backward Classes, De-notified, Tribes (Vimukta Jatis) Nomadic Tribes, Special backward Classes] and for members of weaker section and election thereto.

(1) ***

(2) ***

(3) Any individual member of the society, or any elected member of the committee of a member-society, or any member of the committee of a member-society, whether elected, co-opted or appointed under this section, belonging to the Scheduled Castes or Scheduled Tribes, [or Other Backward Classes or De-notified Tribes (Vimukta Jatis) or Nomadic Tribes or Special Backward Classes), or as the case may be, weaker section, shall be eligible to contest the election to a reserved seat and every person who is entitled to vote at the election to the committee shall be entitled to vote at the election to any such reserved seat.

(4) ***

(emphasis added)

It is evident that Section 73B is relating to election of the members to the seats which are reserved for Scheduled Castes, Scheduled Tribes or Other Backward Classes, etc. In the matter at hands, there is no dispute of respondent No. 5 not belonging to reserved category. From Sub-section (3) of Section 73B, it is evident that a person belonging to particular reserved category can contest the election for a seat reserved for that category provided he can fulfil either of the three characters as contained in Sub-section (3) i.e.

(i) Being an individual member of the Society;

(ii) Being elected member of a Committee of a member-society; or

(iii) Being member of the Committee of a member-society.

We are informed by the two lawyers that the Society in question does not have any member-society. If this is taken into account, only character that is required to be fed by an individual to be elegible to contest the election is being member of the Society and we have already observed that respondent No. 5 has proved himself to be not a member of Society by rule of non-traverse.

Since learned advocate Shri V.B. Patil has placed reliance on Rule 56M, which, according to him, is applicable to the ordinary societies in the light of the view taken by the learned Single Judge of this Court in the matter of Jagdeo Ramchandra Raipure v. State of Maharashtra and Ors. reported in 2003(3) Mh.L.J. 273 [paras 11 and 14 or head-note (a)] that the words etc. in the very title clause of the rules indicate that rules under Chapter V(A) of the Maharashtra Cooperative Societies Rules, 1961 definitely apply and govern the elections of such societies which are neither specified nor notified societies. We reproduce the said Rule for ready reference.

56M. Nomination of candidates -- (1) Any person may be nominated as the candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provision of the Act, these rules and the bye-laws and if his name is entered in the list of voters.--

Provided that, in case of joint or associate members, only the member whose name stands first in the share certificate shall be eligible to be nominated as candidate for the election. Where the seats are reserved on the. committee of any notified society as provided under Section 73B of the Act, any individual belonging to the categories provided under Sub-section (3) of Section 73B shall be eligible for being nominated as candidate even if his name does not appear in the list of voters.

(2) ***

(3) ***

(4) ***

We have underlined two portions from Rule 56M(1) reproduced above. Learned advocate Shri V.B. Patil has led emphasis on the portion underlined from the proviso. According to him, by virtue of this part of the proviso of Section 56M(1), for the purpose of contesting elections on the seats reserved under Section 73B, a person shall be eligible for being nominated as candidate, even if his name does not appear in the list of voters. In order to accept this part of proviso, as sufficient relaxation to a person who is not a member of the Society to be a member of the Managing Committee by contesting election, there are sufficient obstacles within the clause relied upon by Shri Patil. The proviso is applicable only to a notified society. The clause etc. as contained in the title of the rules which was relied upon by the learned Single Judge to hold that the rules apply also to other societies (which are neither specified nor notified societies) does not find place in this proviso immediately succeeding the words "notified societies", and therefore, the relaxation by the proviso, if any, in our opinion, cannot be said to be available to the societies other than notified societies. Otherwise also, in this clause itself, it is said that "any individual belonging to the categories provided under Sub-section (3) of Section 73B". The categories provided under Sub-section (3) of Section 73B are enlisted by us hereinabove. A person if he is not a voter can contest the election to the Managing Committee of the society only if he belongs to any of the categories as contained in Section 73B. The requirement of Sub-section (3) of Section 73B of the Act thus cannot be given go by. A person who is a member of the Society may be able to contest the election even if his name does not find place in the voters list (may be by an accident). A member of the elected Committee of the member-society or a member of the member-society would also be able to contest the election of Federal Society, in spite of his not being a member of the Federal Society and thus not being in the list of voters of the Federal Society. In any case, a person although not voter can contest the election for the Managing Committee of the Society only if he fulfils the criterion as contained in Sub-section (3) of Section 73B. Moreover, allowing the language contained as in the rules framed under the Act to supersede the language as contained in section of the Act would certainly not be a correct mode of interpretation. We, therefore, feel that the Election Officer - respondent No. 4 in accepting the nomination of respondent No. 5 as valid nomination has given over-riding effect to the language as contained in proviso to Rule 56M(1).

8. Even if we consider Sub-rule (1) of Rule 56(M), it lays emphasis by a reference not only to Sub-section (3) of Section 73B, but by specifically saying "if he is qualified to be chosen to fill that seat under the provision of the Act, these rules and the bye-laws. A person to be eligible to contest election has to fulfil the criteria of eligibility laid down in all three i.e. the Act, the Rules and the bye-laws. Portion of the proviso making exemption for a person whose name does not appear in the voters list cannot seek exemption from fulfilling the qualification prescribed by Sub-section (3) of Section 73B and it is evident from the language of Rule 56M(1) itself. We are, therefore, not in a position to agree with the submissions advanced by Shri V.B. Patil that respondent No. 4 was justified in accepting the nomination of respondent No. 5 as valid nomination.

9. The writ petition, therefore, will have to be allowed. We quashed the decision of respondent No. 4 accepting nomination of respondent No. 5 as valid nomination by a candidate duly qualified and eligible to contest the election. We direct respondent No. 4 to strike of the respondent No. 5 from the list of validly contesting candidates and give due publicity to such deletion, and continue with the election process as per schedule.

10. With above directions, writ petition is disposed of.