Bombay High Court
Bapu Kishanrao Kokane vs The State Cooperative Election ... on 17 May, 2022
Bench: S. G. Mehare
912-915, 919-922-WP-5394-2022+group.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5394 OF 2022
Sanket Sopanrao Patil ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
WRIT PETITION NO. 5395 OF 2022
Maruti Tukaram Bodge ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
WRIT PETITION NO. 5396 OF 2022
Madhav Kerba Thavre ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
WRIT PETITION NO. 5397 OF 2022
Pandurang Parbatrao Biradar ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
WRIT PETITION NO. 5402 OF 2022
Babu Kishanrao Kokane ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
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WRIT PETITION NO. 5403 OF 2022
Maruti Gangadhar Biradar ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
WRIT PETITION NO. 5404 OF 2022
Madhavrao Rajaram Mane ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
WRIT PETITION NO. 5405 OF 2022
Govind Pandurang Panchal ... Petitioner
Versus
The State Co-operative Election Authority,
Maharashtra State, Pune and others ... Respondents
....
Mr. M. V. Salunke, Advocate h/f Mr. V. D. Salunke, Advocate for
petitioners
Mr. S. K. Kadam, Advocate for respondent Nos. 1 and 2
Ms D. S. Jape, Mr. S. R. Yadav Lonikar, Mr. R. D. Sanap and Mr. A. R.
Kale, AGPs for the State in respective petitions.
Mr. Umakant B. Deshmukh, Advocate for caveator-intervener
....
CORAM : S. G. MEHARE, J.
(VACATION COURT)
DATED : 17th MAY, 2022
PER COURT :-
. Heard the learned Counsel for the petitioners.
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2. Issue notice to the respondents, returnable on 8 th June
2022.
3. The learned AGP waives for the State, and the learned
Counsel for the Returning Officer and the caveator-intervener waives
service of notices for the Returning Officer and caveator.
4. An interesting point, Whether the proposer and seconder
can propose and second the candidates more than the seats reserved
for the general category for the election of Society/respondent no.4.
is raised in these Writ Petitions.
5. The facts giving rise to the present case are that the
election of Vividh Karyakari Seva Sahakari Society Ltd., Somur,
Taluka Deglur, District Nanded/ respondent no.4 was declared by
respondent No.1. As per the program, the date of nomination was
from 25.04.2022 to 29.4.2022. All the petitioners have submitted
their nominations. However, the Returning Officer/respondent No.2
rejected the nomination of all the petitioners assigning the reason
that the proposer and seconder had proposed and seconded the
number of candidates more than the posts to be elected. As revealed
from the arguments of the parties, all the petitioners have submitted
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their nominations from the general category. Eight (8) posts are
reserved from the general category. However, the same proposer and
seconder have proposed and seconded eleven (11) candidates from
the same category. Hence, the nominations of the present petitioners
have been rejected.
6. The learned Counsel for the petitioners has vehemently
argued that the impugned rejection of the nomination is against the
provisions of law. There is no bar to propose and second the
candidates more than one. He referred to Rule 20(3) of the
Maharashtra State Co-operative Societies (Election to Committee)
Rules, 2014. ( Rules for short)
7. Sub-Rule 3 of Rule 20 provides that any person whose
name is entered in the final 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 73B and 73C of the said Act.
8. He also argued that the Returning Officer would not
have rejected the nomination of the applicants as there was an
opportunity to withdraw the candidature. The learned Counsel relied
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on the Judgment of this Court in the case of Shri Vijay s/o Deorao
Parse Vs. The Assistant Registrar, Co-operative Societies (Dairy),
Nagpur and others (Writ Petition No.2071 of 2017 (Nagpur Bench) ,
dated 22.09.2017. He referred to para 6, which reads thus:
"6] 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 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."
The facts of the said case were that the petitioners had
submitted their nomination form for contesting the election from the
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general category constituency and the total number of eight (8)
Directors were to be elected from the general category constituency.
The Returning Officer rejected the forms on the ground that the
proposer and seconder of the nomination forms in the case of
petitioners have proposed and seconded the candidates a more than
one. In that case, they had proposed and seconded only six
candidates out of the total eight posts. In this case, eight (8)
Directors were to be elected from the general category, and the same
proposer and seconder have proposed and seconded eleven (11)
candidates.
9. The learned Counsel for the contesting respondent
vehemently opposed the petitions and contended that the proposer
or seconder no doubt may propose and the second the nomination
more than one. What shall be the maximum number of candidates
that could be proposed and seconded by the same person was not
the question before the Court in the case of Shri Vijay s/o Deorao
Parse (supra). He referred to Rule 45 of the Rules and argued that
every voter shall be entitled to give as many votes as there are seats
for filling, which voters are to be taken but no voter shall give more
than one vote to any one candidate. He added thatwhen the voter
cannot vote more than one vote to each candidate, then how a voter
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who is entitled to propose and second the candidate can propose and
second the candidates more than the number of seats reserved in a
particular category. To counter this argument, the learned Counsel
for the petitioners would argue that the proposar and seconder
definitely cannot vote for more than one candidate.That does not
mean it restricts the number of candidates who can be proposed and
seconded by the same voter.
10. Learned counsel for contesting respondent would further
submit that when the proposer or the voter has no right to cast a
vote more than the seats to be filled in, then the voter, who is the
only eligible person to propose and second the nomination, cannot
propose the candidate more than the votes he is entitled to cast.
When the voting rights are restricted, naturally, the voters are
restricted to nominate the candidates to the extent of seats reserved
for a category only. In the facts of the case, he would submit that the
case relied on by the petitioners cited supra would not apply.
11. The learned Counsel for the Returning Officer would
argue that the impugned orders passed by the Returning Officer are
legal and correct. However, the rules are silent as regards the
maximum limit to propose and second the nomination by the voters.
So far as Rule 20 is concerned, any person whose name is entered in
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the final list of voters shall be the proposer or seconder for
nominating the candidate for election.
12. The learned Counsel for the contesting respondent relied
on the case of Ashok Anandrao Bhandare and another vs Kolhapur
Municipal Corporation and others - 1985 Mh.L.J. 613 , wherein, in
para No.6, it has observed that fundamental principle of election law
is that a candidate is to be proposed and seconded by an elector who
is entitled to cast vote at the election, in the absence of any specific a
provision to the contrary made in the relevant statute. The facts
before the Court were that the proposer and seconder of the
candidate were not enrolled in the electoral roll of the concerned
ward. In view of this fact, the judgment was delivered, and the view
taken by the learned Civil Judge, Senior Division, Kolhapur, the writ
petition of the candidates whose nominations were rejected, was
upheld.
13. The role of proposer and seconder is very clear that the
same person cannot propose and second the said person who may be
a rival in the election. This is clear from the rule of the nomination
by proposer or seconder of the nomination form.
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14. The arguments of learned Counsel for the petitioners
that if the Returning Officer had accepted the nominations, then
there was scope for withdrawal of the remaining three excess
candidates proposed and seconded does not appeal to the mind of
this Court. How the Returning Officer could decide to whom the
proposer and seconder do not want to propose and second and how
he would choose eight (8) out of eleven. The learned Counsel for the
petitioners has correctly pointed out that Rule 20(3) entitles the
person who is not subject to disqualification as a voter under the Act
by laws of the rules and whose name is entered in the list of voters
for the constituency for which the candidate is nominated may
propose and second the nomination.
15. Having regard to the number of seats to be filled in from
the general category, this Court is of a view that the same
person/voter cannot propose and second the candidates more than
the seats reserved from a particular category. Having gone through
the facts and provisions of law, this Court is not convinced that the
defect of nominating more than eight (8) persons to be filled in from
the general category would be corrected at the time of withdrawal of
nomination by the Returning Officer or anybody else.
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16. In the facts and circumstances of the case, I am not
inclined to grant any interim relief at this juncture. Hence, place
these matters after vacation.
[ S. G. MEHARE, J. ]
SMS
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