Mrs. Sangita Balasaheb Kokare & ... vs Alka Vijayrao More & Ors
2011 Latest Caselaw 108 Bom

                                                 1                       29.wp9287.09

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION




                                                                             
                       WRIT PETITION NO. 9287 OF 2009




                                                     
      Mrs. Sangita Balasaheb Kokare & ors.              ....Petitioners.
            Vs.




                                                    
      Alka Vijayrao More & ors.                         ....Respondents

Mr. A. A. Kumbhakoni i/b. Mr. A.P. Kulkarni, Advocate for Petitioners.

Mr. S.S. Kulkarni, Advocate for Respondent No. 1.

Mr. R.M. Patne, AGP for Respondent Nos. 2 to 9.

                          
                         
                                     CORAM:- GIRISH GODBOLE, J

                                     DATED:-     NOVEMBER 25, 2011
        


      ORAL ORDER :
     

1. At the outset, Mr. Kumbhakoni seeks deletion of Respondent No. 8

Mr. Ajit A. Pawar from the array of parties in view of the interim order

dated 2/9/2009 passed by the Additional Commissioner, Pune Division,

Pune in Election Petition No. Pune/10/2007. Shri Ajit Pawar was joined

as Respondent No. 10 in the Election Petition and by the aforesaid order

he was deleted. This Order has attained finality and on this ground Mr.

Kumbhakoni seeks deletion. Accordingly deletion of Respondent No. 8 is

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granted. Amendment to be carried out forthwith in the court.

2. Rule. Rule made returnable forthwith since the Respondent No. 1

is the contesting candidate and since the notice issued on 18th November,

2009 was for final disposal, service of Rule on other Respondents except

Respondent Nos. 2 and 9 is waived. Learned AGP appears on behalf of

the Respondent Nos. 2 and 9.

3. A very short controversy arises in this Petition. Respondent No.1

has filed Election Petition No. 10 of 2007 under section 144T of the

M.C.S. Act, 1960 before the Divisional Commissioner. Respondent Nos.

4 to 6 in that petition who are Petitioners herein are the 3 candidates

elected from the 3 seats reserved for women in the elections of Malegaon

Sahakari Sakhar Karkhana which is specified Society under Section 73G

of the Act. Elections of Specified Societies are governed by Chapter XIIA

of the Act and the Maharashtra Specified Cooperative Societies Election

to Committee Rules, 1971 (hereinafter referred to as 1971 Rules). There

is no dispute that the total number of the members of the Managing

Committee of the Karkahana/Cooperative Society is 26, out of which 18

are to be elected from the general category A class. One is to be elected

from the Society representatives in B class and the remaining 7 are

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statutory reservations. The only dispute in this Petition is whether in the

Election Petition filed by the Election Petitioner where she is seeking a

limited relief of setting aside elections of 3 Women Candidates, then in

the Election Petition all the returned candidates or all contesting

candidates from all the other categories other than the 3 seats reserved for

women are required to be joined as parties. This dispute revolves around

the proper interpretation of Rule 75 of the 1971 Rules. According to the

Petitioners, considering the nature of averments made in the Election

Petition, though no relief had been sought against the elections of

candidates other than the women candidates, all the contesting candidates

in respect of all the categories were necessary parties. The Petitioners

therefore filed an application for dismissal of the Election Petition on

18/9/2009 on the ground that all the necessary parties have not been

impleaded. By the impugned order dated 8/10/2009 the Additional

Commissioner, Pune Division, Pune has dismissed that application dated

18/9/2009. After quoting Rule 75, the Additional Commissioner has

given the following reasons.

"Rule 75 : Parties to the petition----- A petitioner shall join as respondents to his petition,

a) where the petitioner, in addition to claiming a declaration that election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the

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petitioner and where no such further declaration is claimed all the returned candidates, and

b) any other candidate against whom allegations of any corrupt

practice are made in the petition.

The plain reading of sub-rule (a) as above, makes it clear

that, given the facts of the present petition where the petitioner has claimed that election of all the three returned candidates i.e. Lady Directors, is void and has also further claimed that she herself should be declared as duly elected, the petitioner was bound to join

all the contesting candidates other than herself as respondents to the petition. In the case on hand, the petitioner has joined all the other six contesting candidates who contested for these three seats, reserved for Ladies as respondents and hence proper and legal compliance of Rule 75 is made by the petitioner, in my opinion.

For the findings recorded as above, I pass the following order with regard to the application dated 18/9/2009 in question, ig ORDER The application made by the respondent nos. 4, 5 and 6 on

18/9/2009 for non-compliance of Rule 75 by the petitioner is rejected.

Sd/-

                                                  (R.N. JOSHI)
          PUNE.                            ADDITIONAL COMMISSIONER,
      


          DATE :-08/10/2009                    PUNE DIVISION, PUNE."
   

4. I have heard Mr. Kumbhakoni, Advocate for the Petitioner and Mr.

S. S. Kulkarni, Advocate for Respondent No. 1 who is the contesting

Respondent. According to Mr. Kumbhakoni, since Rule 75 does not make

any distinction between the candidates elected from the General category

or the candidates elected from a particular category, all candidates who

contested the election of the Society must be joined as parties. On the

other hand Mr. Kulkarni submitted that the Election Petition was filed

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under section 144 T. He invited my attention to the Section 144 W and

submitted that the second part of the sub-clause a of Rule 75 has to be

read in the light of the first part of sub-clause a.

5. According to Mr. Kumbhakoni though seats are reserved, only one

election is held, and according to him, if averments of alleged corrupt

practice in the election petition are held to be proved that would not affect

only the women members but would also affect the other elected

candidates even from the general category and other reserved categories

and hence, all of them were necessary parties.

6. I have considered the rival submissions. The M.C.S. Act, 1960

provides for various statutory reservations under various sections. Under

Section 73B it is provided that 4 seats shall be reserved. One for members

belonging to scheduled caste or schedule tribe and one for members

belonging to other backward classes; one for members belonging to D.T.,

Vimukta Jatis, Nomadic Tribes or Special Backward Classes and one for

the memberes belonging to weaker sections. Section 73BBB provides for

reservation for women and the relevant portion of Sub-Section 1 of

Section 73BBB reads thus :

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"73BBB. Reservation of seats on committees of societies for women members and election thereto

(1) Notwithstanding anything contained in this Act, or in the rules made thereunder, or in the bye-laws of any society, there shall be

reserved seats for women on the committee of each society to represent the women members in the following manner, namely :-

(a) one sea on the committee consisting of not more than 9 committee members ;

(b) two seats on the committee consisting of 10 or more,

but not exceeding 19 committee members; and

(c) three seats on the committee consisting of 20 or more

committee members."

In the present case, since the total strength of the Committee is 26, 3 seats

were reserved for women members. It is also necessary to note the

provisions of Section 144W of the Act, which reads thus :

144W. Relief that may be claimed by the petitioner

A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that the himself or any other candidate has been

duly elected.

7. The Act clearly provides for different categories of reservations.

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The real test to determine as to whether every candidate was a necessary

party is to see whether substantive prayer in the Election Petition would

have result of unseating every candidate. Rule 75 will have to be read by

keeping in mind the provisions of section 73B and 73BBB and section

144W of the Act. A careful perusal of clause a of Rule 75 clearly shows

that it is open to the Petitioner to claim a declaration that the election of

all or any returned candidates is void Therefore if the Petitioner has

chosen to seek a declaration that only the election of 3 candidates from the

seats reserved for women is void, even if the Petitioner had sought a

further declaration that she should be declared as elected; all the

contesting candidates from women constituency alone would have been

required to be joined as party Respondents. Perusal of the prayer clause in

the Election Petition clearly shows that the Petitioner has not in fact

sought a declaration that she should be declared as elected. In such a

situation in which the first part of Clause a of Rule 75 will be applicable

as the Petitioner in the Election Petition (Respondent No. 1 herein) has not

sought a further declaration that she or any other candidate should be

declared to have been duly elected. In this view of the matter, it is really

not necessary for the Petitioner even to implead all the contesting

candidates from the women category but factually she has impleaded all

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the contesting candidates from the women category. Once on the basis of

this factual background Rule 75 is interpreted, in my opinion, a

harmonious construction of Rule will not contemplate impleadment of all

the returning candidates even from the general category though no

substantive relief is claimed against them. In view of this, the view taken

by the Additional Commissioner is correct. There is no merit in the Writ

Petition and the same deserves to be dismissed and accordingly, the same

is dismissed. Rule is discharged.

(GIRISH GODBOLE, J)