Shri. Vijay S/O Deorao Parse And ... vs The Assistant Registrar, ...
2017 Latest Caselaw 7468 Bom

        wp2071.17.J.odt                                                                                               1/8    


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                  WRIT PETITION NO. 2071 OF 2017


        1]   Shri Vijay S/o Deorao Parse,
              Aged about 40 years. Occ.: Fisherman,
              R/o At Post Dudhala (Satgaon),
              Tah-Hingna, Dist-Nagpur.

        2]   Shri Vijay S/o Champatrao Mohankar,
              Aged about 38 years. Occ.: Fisherman,
              R/o At Post Ridhora (Satgaon),
              Tah-Hingna, Dist-Nagpur.

        3]   Shri Vishnu S/o Narayan Nagpure,
              Aged about 40 years. Occ.: Fisherman,
              R/o At Post Ridhora (Satgaon),
              Tah-Hingna, Dist-Nagpur.

        4]   Shri Sudhakar S/o Ganba Dongare,
              Aged abut 42 years. Occ.: Fisherman,
              R/o At Post Ridhora (Satgaon),
              Tah-Hingna, Dist-Nagpur.

        5]   Shri Ashok S/o Devrao Dongare,
              Aged about 35 years. Occ.: Fisherman,
              R/o At Post Ridhora (Satgaon),
              Tah-Hingna, Dist-Nagpur.

        6]   Shri Kailash S/o Devrao Dongare,
              Aged about 40 years, Occ.: Fisherman,
              R/o At Post Dudhala (Satgaon),
              Tah-Hingna, Dist-Nagpur.                           .....PETITIONERS

                          ...VERSUS...

        1]   The Assistant Registrar,
              Co-operative Societies (Dairy), Nagpur.




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        2]  The Election Officer, Ku. A. P. Bele,
              Ekattamik Matsyotpadan Vikas Sahakari
              Sanstha Maryadit, Kanhalgao (Ridhora),
              Tah-Hingana, Dist-Nagpur.

        3]   Ekattamik Matsyotpadan Vikas Sahakari
              Sanstha Maryadi, Kanhalgao (Ridhora),
              Tah-Hingana, Dist-Nagpur.
              Through its Authorized Officer,
              Shri Pravin Ninawe.                              ...... RESPONDENTS

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Mr. A. M. Ghare, Advocate for Petitioners.
        Mrs. M. A. Barabde, A. G. P. for Respondent No.1.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                           CORAM  :   S. C. GUPTE, J.

nd SEPTEMBER, 2017.

                           DATE      :   22


        ORAL JUDGMENT   :

Heard learned counsel for the petitioners and learned

Assistant Government Pleader for respondent No.1/State.

02] Rule. Rule made returnable forthwith and taken up for

hearing with consent of counsel for the parties.

03] The subject matter of challenge in the present writ

petition is an order passed by the Election Officer appointed to

conduct elections to the Managing Committee of Ekattamik

wp2071.17.J.odt 3/8

Matsyotpadan Vikas Sahakari Sanstha Maryadi (respondent No.3),

which is confirmed in appeal by the Assistant Registrar, Co-

operative Societies (Dairy), Nagpur.

04] The petitioners are members of respondent No.3 -

society. The original executive committee of respondent No.3 -

society was superseded by an order passed by Assistant Registrar,

Co-operative Societies under Section 77-A on 25 th August, 2016.

The Assistant Registrar subsequently appointed respondent No.2 as

the Election Officer for conducting elections to the executive

committee of the society. The election programme was published

on 27th February, 2017. According to the election programme, a

total number of eight directors were to be elected from the general

category constituency, whereas five directors were to be elected

from reserve constituencies such as backward classes, women, etc..

The petitioners submitted their nomination forms for contesting the

election from the general category constituency. The forms were

rejected by respondent No.2 on the ground that the proposers and

seconders of the forms in the case of the petitioners had proposed

or seconded more than one candidate. The rejection was

challenged by the petitioners before the Assistant Registrar, Co-

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        operative   Societies   (respondent   No.1   herein).     By   his   impugned

order dated 27th March, 2017, the Assistant Registrar rejected the

petitioners' appeal on the ground that according to the rule for

nomination of candidates contained in the Maharashtra

Co-operative Society (Election to Committees) Rules, 2014, no

proposer or seconder could propose or second more than one

candidate from the same group. The rejection of their nomination

forms by the Election Officer and repelling of their challenge to it

in appeal by the Assistant Registrar are impugned by the petitioners

in the present petition.

05] In exercise of powers conferred by Sub Sections (1) and

(2) of Section 165 of the Maharashtra Co-operative Societies Act,

1960, the Government of Maharashtra has made Rules for conduct

of elections to Committees of co-operative societies, called the

Maharashtra Government Society (Election to Committees) Rules,

2014 (hereinafter called "the election rules"). Rule 20 provides for

nomination of candidates. Any member, whose name appears in

the final list of voters, may be nominated as a candidate for the

election, if otherwise qualified to be chosen under the provisions of

Maharashtra Co-operative Societies Act or Rules framed thereunder

wp2071.17.J.odt 5/8

and the bye-laws of the concerned society. Every nomination paper

presented by a candidate has to be in Form E-5 prescribed under

the Rules. The nomination form inter alia contains the names of

the proposer and the seconder. Sub Rule (3) of Rule 20 is in the

following terms -

"Any person whose name is entered in the list of voters may be a proposer or seconder for nominating a candidate for election:

Provided that, in the case of election from constituency of societies, the proposer and the seconder shall be from the same constituency except reservation falling under section 73-B and 73-C."

06] Neither Sub Rule (3) nor Form E-5 suggests that there is

any restriction on the proposer or seconder to propose or second,

as the case may be, not more than one candidate for the election to

the committee. Learned A. G. P. for the State, relying on the

language of the Sub Rule, particularly, article "a" appearing both

before the words "proposer or seconder" and "candidate for

election" in Sub Rule (3), submits that the inclusion of article "a"

indicates that one proposer or seconder can nominate one

candidate for election. Article "a' appearing in Sub Rule (3) does

not suggest anything of the kind. It merely provides for eligibility

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of a person, whose name appears in the list of voters, to be a

proposer or seconder for nominating a candidate to the election. It

means nothing more and nothing less. If there was to be any

restriction on the person appearing in the list of voters to be a

proposer or a seconder, as the case may be, for one candidate

alone, the provisions should have contained a stipulation to that

effect. Not only is there no such stipulation in Sub Rule (3) of Rule

20, even Form E-5, which is a form of nomination paper and which

contains particulars of the proposer and the seconder, does not

contain any declaration on the part of the proposer or the seconder,

as the case may be, to the effect that he proposes or seconds only

the candidate appearing in the nomination paper and no one else.

Reading of Sub Rule (3) of Rule 20 and Form E-5 together makes it

apparent that the Sub Rule merely provides for eligibility condition

of a proposer or seconder, namely, existence of his name in the list

of voters. If his name is entered in the list of voters, he could be a

proposer or a seconder. There is no restriction in the Rules

prohibiting him from proposing or seconding more than one

candidate.

        07]                Quite   apart   the   lexicological   consideration   for   the





         wp2071.17.J.odt                                                                                               7/8    

interpretation of the sub-rule, even logically it makes scarce sense

to restrict the number of candidates to be nominated or seconded

by a single individual to one. After all, there are eight directors to

be elected from the general category. If each voter would have to

vote for eight candidates, there is no reason why a proposer or a

seconder can propose or second only one candidate.

08] Accordingly, the impugned rejection of nomination

forms by the Election Officer and its confirmation in appeal by the

Assistant Registrar suffer from a grave legal infirmity and cannot be

sustained. The mandate of the law is plain and clear. No

nomination form can be rejected by the Election Officer under the

election rules on the ground that the proposer or seconder of the

form has proposed or seconded, as the case may be, more than one

candidate.

09] Rule is, accordingly, made absolute and the impugned

order of the Election Officer and the Assistant Registrar are

quashed and set aside. The nomination forms of the petitioners

stand unconditionally accepted.

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        10]                During the pendency of the petition, this Court had, by

an order dated 6th April, 2017, directed the Election Officer to

permit the petitioners to contest the election by including their

names provisionally in the list of final contesting candidates and

allot symbols to them accordingly. The result of the election was,

however, not to be declared without further orders of this Court.

In pursuance of these directions, the petitioners have been

provisionally included in the list of contesting candidates and the

election programme was duly conducted by the Election Officer

after allotting symbols to them. By a further order dated 6 th

September, 2017, the Election Officer was directed to count votes

and submit the result of the elections in a sealed cover to this

Court. The Election Officer has, accordingly, submitted the result

of the election in sealed cover to this Court. The cover is opened

with consent of all parties. Since the impugned rejection of the

nomination papers is set aside, the names of the petitioners in the

list of final contesting candidates are treated as final. The results be

declared accordingly.

JUDGE PBP