Bombay High Court
Narendra Annasaheb Mane And Ors vs The State Of Maha. Thr. Sec. Co-Op ... on 17 October, 2022
Bench: Nitin Jamdar, Sharmila U. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 22824 OF 2022
Raosahebdada Pawar Ghodganga
Sahakari Sakhar Karkhana Limited
Registered under MCS Act, 1960
Having its address at Raosahebnagar,
Post Nhavare, Taluka Shirur, District Pune
Through its Managing Director
Pravin S. Shinde ... Petitioner
V/s.
1. The State of Maharashtra
Through the Secretary, Co-operative.
Irrigation and Textile Department,
Madam Cama Road, Hutatma Rajguru
Chowk, Mantralaya, Mumbai - 400 032
(Copy to be served upon Government
Pleader - A.S. (Writ Cell))
2. The Desk Officer, Government of
Maharashtra
(Copy to be served upon
Government Pleader - A.S. (Writ Cell))
3. The Maharashtra State Co-operative
Society Election Authority
Having Office at Old Central Building
Ground Floor, Pune - 411 001
4. The Co-operative Society,
Election Officer,
Regional Joint Director (Sugar)
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Pune Region, Pune
Having Office at 1st Floor,
Sahakari Sankul, Shivaji Nagar,
Pune - 411 005
5. The Returning Officer, Raosahebdada
Pawar Ghodganga Sahakari Sakhar
Karkhana Ltd., Raosahebnagar,
Nhavare, Taluka Shirur, District Pune ... Respondents
with
INTERIM APPLICATION (ST.) NO. 23498 OF 2022
in
WRIT PETITION (ST.) NO. 22824 OF 2022
Rahul Sambhaji Gaware ... Applicant
In the matter between
Raosahebdada Pawar Ghodganga
Sahakari Sakhar Karkhana Limited ... Petitioner
V/s.
The State of Maharashtra and Ors. ... Respondents
with
WRIT PETITION (ST.) NO. 22826 OF 2022
1. Narendra Annasaheb Mane
Adult Indian Citizen, Occ. Farmer
Residing at Shirasgaav Kata,
Taluka Shirur, District Pune
2. Sambhaji Shivaji Pharate
Adult Indian Citizen, Occ. Farmer
Residing at Mandavgan Pharata,
Taluka Shirur, Distrct Pune
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3. Prabhakar Narayan Pachundkar
Adult Indian Citizen, Occ. Farmer
Residing at Ranjangaon Ganpati,
Taluka Shirur, District Pune ... Petitioners
V/s.
1. The State of Maharashtra and Ors.
Through the Secretary, Co-operative,
Irrigation and Textile Department,
Madam Cama Road, Hutatma Rajguru
Chowk, Mantralaya, Mumbai - 400 032
2. The Desk Officer,
Government of Maharashtra
3. The Maharashtra State Co-operative
Society Election Authority,
Having Office at Old Central Building
Ground Floor, Pune - 411 001
4. The Co-operative Society
Election Officer, Regional Joint
Director (Sugar), Pune Region, Pune
Having Office at 1st Floor, Sahakari
Sankul, Shivaji Nagar, Pune - 411 005
5. The Returning Officer,
Raosaheb Pawar Ghodganga Sahakari
Sakhar Karkhana Ltd.,
Raosahebnagar, Nhavare,
Taluka Shirur, District - Pune
6. Raosahebdada Pawar Ghodganga
Sahakari Sakhar Karkhana Limited,
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Having its address at Raosahebnagar,
Post - Nhavare, Taluka Shirur,
District Pune,
Through its Managing Director ... Respondents
with
INTERIM APPLICATION (ST.) NO. 23495 OF 2022
in
WRIT PETITION (ST.) NO. 22826 OF 2022
Rahul Sambhaji Gaware ... Applicant
In the matter between
Narendra Annasaheb Mane and Ors. ... Petitioners
V/s.
The State of Maharashtra and Ors. ... Respondents
with
WRIT PETITION NO. 9499 OF 2022
Raosahebdada Pawar Ghodganga
Sahakari Sakhar Karkhana Limited
Registered under MCS Act, 1960
Having its address at Raosahebnagar,
Post Nhavare, Taluka Shirur, District Pune
Through its Managing Director
Pravin S. Shinde ... Petitioner
V/s.
1. The State of Maharashtra
Through the Secretary, Co-operative.
Irrigation and Textile Department,
Madam Cama Road, Hutatma Rajguru
Chowk, Mantralaya, Mumbai - 400 032
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(Copy to be served upon Government
Pleader - A.S. (Writ Cell))
2. The Desk Officer, Government of
Maharashtra
(Copy to be served upon
Government Pleader - A.S. (Writ Cell))
3. The Maharashtra State Co-operative
Society Election Authority
Having Office at Old Central Building
Ground Floor, Pune - 411 001
4. The Co-operative Society,
Election Officer,
Regional Joint Director (Sugar)
Pune Region, Pune
Having Office at 1st Floor,
Sahakari Sankul, Shivaji Nagar,
Pune - 411 005
5. The Returning Officer, Raosahebdada
Pawar Ghodganga Sahakari Sakhar
Karkhana Ltd., Raosahebnagar,
Nhavare, Taluka Shirur, District Pune ... Respondents
and
WRIT PETITION NO. 9503 OF 2022
1. Narendra Annasaheb Mane
Adult Indian Citizen, Occ. Farmer
Residing at Shirasgaav Kata,
Taluka Shirur, District Pune
2. Sambhaji Shivaji Pharate
Adult Indian Citizen, Occ. Farmer
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Residing at Mandavgan Pharata,
Taluka Shirur, Distrct Pune
3. Atul Tanaji Bendre
Adult Indian Citizen, Occ. Farmer
Residing at Aambale,
Taluka Shirur, District Pune ... Petitioners
V/s.
1. The State of Maharashtra and Ors.
Through the Secretary, Co-operative,
Irrigation and Textile Department,
Madam Cama Road, Hutatma Rajguru
Chowk, Mantralaya, Mumbai - 400 032
2. The Desk Officer,
Government of Maharashtra
3. The Maharashtra State Co-operative
Society Election Authority,
Having Office at Old Central Building
Ground Floor, Pune - 411 001
4. The Co-operative Society
Election Officer, Regional Joint
Director (Sugar), Pune Region, Pune
Having Office at 1st Floor, Sahakari
Sankul, Shivaji Nagar, Pune - 411 005
5. The Returning Officer,
Raosaheb Pawar Ghodganga Sahakari
Sakhar Karkhana Ltd.,
Raosahebnagar, Nhavare,
Taluka Shirur, District - Pune
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6. Raosahebdada Pawar Ghodganga
Sahakari Sakhar Karkhana Limited,
Having its address at Raosahebnagar,
Post - Nhavare, Taluka Shirur,
District Pune,
Through its Managing Director ... Respondents
Mr. Y.S. Jahagirdar, Senior Advocate i/b. Ashish Pawar for the
Petitioner in WP (St.) 22826/22
Mr. Sagar Amrut Rane for the Petitioners in WP(St.) 22824/22
Mr. Deelip Patil Bankar, Chief Standing Counsel SCEA a/w. Pooja
Deelip Patil and Suhas Rohile for Respondents 5 and 3
Ms. Kavita N. Solunke, AGP for the State
Mr. Ajinkya Udane for the Intervener
CORAM : NITIN JAMDAR &
SHARMILA U. DESHMUKH, JJ.
DATE : 17 OCTOBER 2022
Judgment (Per Nitin Jamdar, J.) :-
This group of Writ Petitions concern the election to a
Co-operative Society. The Co-operative Society in question is
Raosahebdada Pawar Ghodganga Sahakari Sakhar Karkhana Ltd.,
the Karkhana.
2. Rule. Rule is made returnable forthwith. The
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Respondents waive service. Taken up for disposal. The Petitions
have been argued together and are disposed of by this common
judgment.
3. In Writ Petition (St.) No. 22824 of 2022 and Writ
Petition (St.) No. 22826 of 2022, the challenge is to the action of
the Respondent No.3 - Maharashtra State Co-operative Societies
Election Authority (the State Election Authority) countermanding
the election to the managing body of the Karkhana in view of the
death of one of the candidate. An Intervention Application is filed
by one candidate to support the decision to countermand the
election.
4. In Writ Petition No. 9503 of 2022 and Writ Petition
No. 9499 of 2022 the challenge is to the decision dated 15 July
2022 taken by the State Government to defer the elections to the
Co-operative Societies in the State of Maharashtra till 30 September
2022. The controversy involved in these Petitions is worked out. In
a group of Petitions, Writ Petition Nos. 8845 of 2022 and Ors.,
challenged this decision of the State. On 19 September 2022, a
statement was made on behalf of the State Government that the
election to the Co-operative Societies in the State would commence
on 30 September 2022. Recording this statement, the group of
Petitions was deferred to 3 October 2022 only for compliance. On 3
October 2022, as the learned Counsel for the appearing parties
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pointed out that the challenge to the decision/notification dated 15
July 2022 no longer survives, and the elections would commence
from the stage they were postponed. This group of petitions were
disposed of on 3 October 2022 as the challenge was rendered
infructuous. Writ Petition No. 9503 of 2022 and Writ Petition No.
9499 of 2022 also could have disposed of on that day, however, the
elections to the Karkhana could not commence in view of the order
passed by the State Election Authority of countermanding the
election, which is the subject matter of Writ Petition (St.) Nos.
22824 of 2022 and 22826 of 2022. Therefore Writ Petition No.
9499 of 2022 and Writ Petition No. 9503 of 2022 were adjourned
to be heard with the petitions challenging the order of countermand.
5. Turning now to the facts and challenge in Writ Petition
(St.) Nos. 22824 of 2022 and 22826 of 2022. In addition to the
pleadings, the Petitioners have circulated a note elaborating factual
details, upon which there is no dispute.
6. Raosahebdada Pawar Ghodganga Sahakari Sakhar
Karkhana Ltd. is a Co-operative Sugar Factory. It was registered on
16 May 1990. Its area of operation is Shirur Taluka in Pune District.
Writ Petition (St.) No. 22824 of 2022 is filed by the Karkhana. The
Petitioners in Writ Petition (St.) No. 22826 of 2022 are the
members of the Karkhana who are contesting the elections of the
Managing Board and their nominations are held to be valid. The
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Regional Joint Director (Sugar), Pune, on 11 November 2014,
approved the Bye-Laws which govern the Karkhana. As per By-Law
26, the Board of Directors/Managing Committee of the Karkhana is
to be elected from the Individual Producer Members and Society
Producer Members. The term of five years of the Board of Directors
of the Karkhana ended on 21 May 2020. Due to the Covid 19
Pandemic, these elections were postponed, and the earlier Board of
Directors is functioning till the new Board of Directors is elected.
7. Elections to the Board of Directors of the Karkhana were
notified on 24 June 2022 by Respondent Nos. 3 to 5 in terms of the
Maharashtra Co-operative Societies (Election to Committee) Rules
2014 (the Rules of 2014). Total twenty one directors are to be elected
from six constituencies. These are as follows:
"(a) Constituency No.1: 6 Gats and each Gat to elect a minimum
of 2 and maximum of 3 Directors. Total of 15 Directors (on a
rotation basis) to be elected from 'Individual Producer Members'.
(b) Constituency No.2 : One from the 'Society Producer
Members' of the Karkhana.
(c) Constituency No.3: One from the Scheduled
Caste/Scheduled Tribe (SC/ST) category to be elected.
(d) Constituency No.4 : Two Women Directors.
(e) Constituency No.5 : One belonging to the Other
Backward Caste ("OBC").
(f) Constituency No.6 : One Director belonging to "VJNT" to
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be elected."
A list of valid nominations was published on 4 July 2022. Names of
a total of 138 candidates were included in the said list. The Petitioner
Nos. 1,2 and 3 in Writ Petition (St.) No. 22826 of 2022 are
included in the said list from the Individual Producers Constituency,
Gat Nos. 2, 1 and 6.
8. As per the election programme, the last date for
withdrawal of nomination was 18 July 2022. 19 July 2022 was
fixed for publication of the list of Contesting Candidates. On 15 July
2022, the Government of Maharashtra issued a Resolution/Order
postponing the elections to the Co-operative Societies in the State
(with some exceptions) till 30 September 2022 in view of excessive
rainfall situation.
9. One Mr. Baburao Pacharne, whose nomination was
accepted as valid from Individual Producers Constituency Gat No.6,
expired on 11 August 2022. In view of Mr. Pacharne's demise, the
State Election Authority wrote to Respondent No.5 - The Election
Officer, to take steps as per Rule 31 of the Rules of 2014 and submit
a revised election programme for approval. On 13 September 2022,
Respondent No.5 passed an order countermanding the elections to
the Karkhana citing the demise of Mr. Baburao Pacharne as the
reason. Challenging this order, the Petitioners are before us.
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10. Reply affidavit is filed on behalf of the State Election
Authority. The interveners have supported the stand taken by the
State Election Authority.
11. We have heard Mr. Y.S. Jahagirdar, learned Senior
Advocate for the Petitioner in WP (St.) 22826/22, Mr. Sagar Amrut
Rane for the Petitioners in WP(St.) 22824/22, Mr. Deelip Patil
Bankar, Chief Standing Counsel for Respondents 5 and 3 -The State
Election Authority, Ms. Kavita N. Solunke, Asstt. Govt. Pleader for
the State and Mr. Ajinkya Udane for the Intervener.
12. Before we refer to and deal with the rival contentions, a
brief overview of the governing statutory scheme relevant for the
controversy at hand is necessary, and it is thus. The Maharashtra Co-
operative Societies (Election to Committee) Rules 2014 are framed
in the exercise of powers conferred under Section 165 of the
Maharashtra Co-operative Societies Act, 1960. Part II of the Rules
deal with the type of societies. Part III is regarding the preparation
of the electoral roll. Part IV lays down the administrative machinery
for conducting elections. Conduct of elections is dealt with under
Part V of the Rules and contains the Rules relevant to the matter at
hand. Rule 18 lays down the programme for various stages of the
election.
"18. Declaration of election programme.--
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(1) The Returning Officer, with prior approval of
the SCEA, shall draw and declare a programme of
various stages of election, within ten days of
the display of final list of voters of the society,
which shall be as follows :--
(i) Date of declaration of election programme. -
Date to be announced at the time of
declaration of programme.
(ii) Last date for making nominations. - 5 days
from the date of declaration of election programme.
(iii) The date of publication of list of nominations
received. - As and when received till the last date
fixed for making nominations.
(iv) Date of scrutiny of nominations. - Next day of
the last date for making nominations.
(v) Date of publication of list of valid nominations
after scrutiny. - Next day after the date of
completion of scrutiny.
(vi) Date by which candidature may be withdrawn.
- Within 15 days from the date of publication
of list of valid nominations after
scrutiny.
(vii) Date of publication of final list of contesting
candidates and allotment of election symbols. - The
day next succeeding the last day fixed
for withdrawal of candidatures.
(viii) Date and time during which and the place/
places at which the poll shall be taken, if necessary.
- Not earlier than 7 days but not later than
15 days from the date of publication of
final list of contesting candidate (time
and place to be fixed by the Returning
Officer)
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(ix) Date, time and place for counting of votes. -
Not later than 3rd day from the date of
which the poll shall be taken (Time and
place to be fixed by the Returning
Officer).
(x) Date of declaration of results of voting. -
Immediately after the counting of votes.
Explanation. --
(a) If the date in reckoning dates as specified in the
above cases is a
public holiday, the next succeeding working day
shall be fixed for the respective events;
(b) The proportion of polling station to number of
voters at each polling stations and the
place of polling stations shall be fixed in
consultation with the SCEA or District Co-
operative
Election Officer. Where the polling Stations are
spread over entire district, town or village
in the District, the Returning Officer shall make
arrangement to get all the ballot boxes or
Electronic Voting machines to the office of the
Returning Officer or to the concerned
Registrar's office or to the societies' or to such other
safe place as he may deem fit."
(emphasis supplied)
The first stage is the date of the election programme. The second
stage is the last date for filing a nomination. The third stage is the
date of publication of a list of nominations received. The fourth
stage is of scrutiny of nominations. Fifth stage is the date of
publication of valid nominations after scrutiny. Thereafter, sixth
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stage is the date by which candidature may be withdrawn, and the
seventh stage is the date of publication of the Contesting Candidates'
final list and allotment of election symbols.
13. The fifth stage regarding the date of publication of valid
nominations is dealt with under Rule 26. Rule 26 states that
immediately after all the nomination papers have been scrutinized
and the decisions accepting or rejecting the same have been
recorded, the Returning Officer shall prepare a list of candidates
whose nominations have been accepted. Immediately on the next
day after the scrutiny is over, the Returning Officer shall affix the list
on his notice board and shall record the date on which and the time
at which the list was affixed. The date by which the candidature may
be withdrawn is dealt with in Rule 27, and preparation of the final
list of candidates is specified under Rule 28. Under Rule 27, any
candidate may withdraw candidature by giving notice in writing to
the Returning Officer in Form E-6. The notice is to be delivered
before 3.00 p.m. on the last date fixed under Rule 18 for withdrawal
of the candidature.
14. Thereafter, Rule 28 follows, which is important, and
reads thus:-
28. Preparation of list of contesting candidates and
allotment of symbols.--
(1) On the day next succeeding the last date fixed for
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withdrawal of candidature, the Returning Officer shall
prepare and publish in FORM 'E-7', a list of contesting
candidates, that is to say, the candidates
whose names have been finally accepted and who has not
withdrawn their candidatures within
the prescribed time on the notice board of his office.
(2) The said list shall contain the names in alphabetical
order with reference in the names
of candidates having surnames and the names proper of
other candidates, in the language and
manner in which the list of voters is prepared and the
addresses of the contesting candidates as
given in the nomination papers.
(3) 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 candidate in
conformity as far as practicable, with his choice ; and
(b) if more than one contesting candidates have indicated
their preference for the same
symbol, then symbols shall be allotted on the basis of
'first come first serve' and such allotment
shall be final.
(c) If more than 30% of candidates of the total contesting
seats come together and form
the group and demand a common symbol by common
written application signed by all the
concerned candidates, then the Returning Officer may
allot them a common symbol.
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(4) Every candidate shall forthwith be informed of the
symbol allotted to him and be supplied
with a specimen provided by the SCEA thereof by the
Returning Officer."
(emphasis supplied)
This Rule states that on the day next succeeding the last date fixed
for withdrawal of candidature, the Returning Officer shall prepare
and publish in Form E-7, a list of Contesting Candidates, that is to
say, the candidates whose names have been finally accepted and who
has not withdrawn their candidatures within the prescribed time on
the notice board of his office. Form E-7reads thus:-
Form E-7
[See Rule 28]
Final list of Contesting Candidate
Election to the committee member
of ................................................ Co-operative Society
Ltd., ..............................., Tahsil .................................,
District ................................... from the
..........................................................................
Constituency.
Serial Name of the Address of the Symbol allotted to
No. Candidate Candidate the Candidate
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Place:
Date: Signature of Returning Officer.
N.B.--
1. Names shall be arranged in alphabetical order of
surname. If no surname then first
name and for other Publication of the list of contesting
candidates shall be made on the
notice board of the office of the Returning Officer and
the registered office of the Society.
(emphasis supplied)
The next relevant rule is Rule 31, This rule empowers the Election
Authority to countermand the election. It reads thus:-
"31. Death of candidate before poll
If a contesting candidate dies and a report of his death is
received by the Returning Officer before the
commencement of the poll, the Returning Officer shall,
upon being satisfied of the fact of the death of candidate,
countermand the poll and inform the SCEA of District
Co-operative Election Officer along with the
proceedings with reference to the election, and the
election shall be commenced in all respect, as if for a new
election.
Provided that, no further nomination shall be necessary
in the case of a person who was a contesting candidate at
the time of the countermanding of the poll:
Provided further that, no person who has given a notice
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of withdrawal of his candidature under Rule 27 before
the countermanding of the poll shall be eligible for
being nominated as a candidate for the election after
such countermanding.
Provided also that, no fresh notice of withdrawal by the
candidate whose nomination is accepted before the
countermanding shall be accepted by the returning
officer for the election after such countermanding."
(emphasis supplied)
Thus, if a contesting candidate dies and a report of his death is
received by the Returning Officer before the commencement of the
poll, the Returning Officer shall, upon being satisfied of the fact of
the death of candidate, countermand the poll.
15. The Rule 2(17) of the Rules of 2014 defines the "State
Co-operative Election Authority" as the one constituted by the State
Government under Section 73CB. Section 73-CB of the
Maharashtra Co-operative Societies Act, 1960 states that the
superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to a society shall
vest in the State Cooperative Election Authority, as may be
constituted by the State Government in that behalf. Every general
election of the members of the committee and election of the office-
bearers of society, including any casual vacancy, to the extent
applicable, shall be held as per the procedure prescribed. The powers
of the State Election Authority are specified under Rule 3 of the
Rules of 2014. The relevant portion of Rule 3 of the Maharashtra
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Co-operative Societies (Election to Committee) Rules, 2014 reads
thus :
"3. Powers of State Co-operative Election Authority
(SCEA)
In order to conduct the elections of the co-operative
societies, the SCEA shall have the following powers,
namely :-
(i) ...
(ii) ..
(iii) ...
(iv) ...
(v) to issue such special or general orders or directions
for fair and free elections, which shall not be inconsistent
with the provisions of the Act and the Rules.
(vi) ....
This is in short, the relevant scheme of the Rules of 2014 as regards
the conduct of the elections to a Co-operative Society in the context
of the controversy at hand.
16. On 18 April 2022, the State Election Authority issued a
clarification/order purportedly under Rule 3(v) read with Rule 31 of
the Rules. It was stated therein that various clarifications were sought
from the State Election Authority about procedure to be followed
upon the death of a candidate. The clarification/order dated 18 April
2022 stated that those candidates whose nomination paper has been
accepted and those who had not withdrawn their nomination, if such
a person expires, then the election be countermanded under Rule 31
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of the Rules of 2014.
17. Reverting to the submissions of the parties. Mr. Y.S.
Jahagirdar, submitted briefly as follows. The countermanding the
election to the Co-operative Societies in the State is governed by the
Rules of 2014. Part V of the Rules 2014 deals with the Conduct of
Elections, and it is specifically provided in Rule 28 that on the day
next succeeding the last date for withdrawal of candidature, the
Returning Officer shall prepare a list of contesting candidates. Rule
28 defines that the contesting candidate means those whose names
have been finally accepted and those who have not withdrawn his
candidature within the prescribed time. The only rule under Rules of
2014 which permits countermanding of the poll is under Rule 31.
Only upon the death of a contesting candidate the election can be
countermanded. Since Mr. Baburao Pacharne expired prior to the
last date of withdrawal of nomination, he was included in the list of
Contesting Candidate as per Rule 28, no order could have been
passed under Rule 31 countermanding the election on his death.
Any other interpretation will make the Rule 31 and the provisos
thereunder otiose. The instructions/order issued by the State
Election Authority on 18 April 2022 referring to Section 73CB of
the Maharashtra Co-operative Societies Act, 1960 and Rule 31 of
Rules 2014 cannot be contrary to the statutory rules and will not
apply if the jurisdictional facts referred to in Rule 28 read with Rule
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31 are not present. This issue is squarely covered in the decision of
this Court in the case of Vivek Bhaiyasaheb Deshmukh and Anr. v/s.
Returning Officer-cum-Collector and Ors.1 in Writ Petition No.1412
of 2011 decided on 22 March 2011, where this Court interpreting the
pari materia provisions of Rules 26 and 29 of Maharashtra Specified
Co-operative Societies (Election to Committee) Rules, 1971 has held
that the elections could be countermanded only if the candidate
whose name has appeared in the list of contesting candidate has
expired before the commencement of poll. The exercise of
countermanding the election is, therefore, illegal and without
jurisdiction. Therefore, the elections to the Karkhana should proceed
from the stage they were deferred by the general directions issued by
the State of Maharashtra on 15 July 2022, like other co-operative
societies in the State.
18. Mr. Deelip Patil Bankar, the learned Counsel for the
Election Authority, submitted that there is no illegality in the
impugned action. Though it is correct that the name of Mr.
Pacharne was not included in the list of Contesting Candidates, it
was because he had expired prior to that date, and not much
importance that can be attached to the phrase 'Contesting
Candidate' which is used in general sense under the Rules of 2014.
This position was clarified by this Court in the case of Rameshlal
Khialdas Tejvani v/s. Collector, Jalgaon and Ors. 2. The impugned
1 2011(4) Bom.C.R.415
2 1992 Mh.L.J. 175
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order is passed under Rule 31 of the Rules of 2014 along with
clarification/notification issued by the State Co-operative Election
Authority on 18 April 2022. The State Election Authority,
constituted under Section 73CB of the Act of 1960, is empowered to
hold the elections as per the procedure, guidelines and manner,
including using the latest technology and expertise. Rule 3(v) of
Rules of 2014 empowers the Authority to issue special or general
orders or directions for fair and free elections. Since various
clarifications were sought from the State Election Authority
regarding the procedure to be followed upon the death of a
candidate, the order/clarification was issued on 18 April 2022.
Therefore, reading Rule 31 along with the clarification/order dated
18 April 2022, those candidates whose nomination paper has been
accepted and had not withdrawn their nomination, if such a person
expires, then the election can be countermanded under Rule 31 of
the Rules of 2014. Therefore, the fact that a person appears as a
contesting candidate in a list maintained under Rule 28 is not
relevant. In the present case, Mr. Baburao Pacharne had expired
after his nomination was accepted; therefore, the elections were
rightly countermanded. Countermanding the election has not caused
any prejudice to the Petitioners; consequently, they cannot make any
grievance. As held by the Hon'ble Supreme Court in the case of I.K.
Gujral v/s. Election Commission of India 3, countermanding the
election is not unconstitutional, arbitrary and in fact if an integral
3 1993 Supreme (Del) 210
JPP 24 WPSt.22824.22 - 22826.22.doc
part of the election and a step towards the completion of the election.
Therefore, there is no merit in the Petition, and the petition be
dismissed.
19. Mr. Ajinkya Udane, learned Counsel for the Intervener,
whose intervention was opposed by the Petitioners, supported the
contentions of the State Election Authority and, in addition,
submitted that the Petitioner should have joined the other contesting
candidates as Respondents and apart from the grounds taken by the
State Election Authority on this ground also the Petition be
dismissed.
20. The dispute before us is briefly as follows. According to
the State Election Authority, as per the clarification/order dated 18
April 2022, purportedly issued under Rule 3(v) read with Rule 31 in
case of the death of those candidates whose nomination paper has
been accepted and have not withdrawn their nomination, the
election can be countermanded, and he doesn't need to be in the list
of Contesting Candidate, which is only a description. According to
the Petitioner, the statutory scheme is clear that only on the death of
a contesting candidate, as defined under Rule 28, that an election
can be countermanded under Rule 31 and by mere issuing of some
procedural directions, the statutory scheme cannot be modified.
21. It is settled that the primary principle of statutory
JPP 25 WPSt.22824.22 - 22826.22.doc
interpretation is giving effect to the plain language used in the
statute. If the plain language leads to absurdity or unworkability,
then purposive interpretation can be resorted to. We find that
despite the statutory provisions being clear and unambiguous, the
State Election Authority is needlessly looking for ambiguities.
22. It is to be noted that a candidate becomes a Contesting
Candidate for the first time in the Rule 28. There is no reference to
the concept of contesting candidates prior to this stage under the
Rules. The contention of the State Election Authority that the
phrase Contesting Candidate is a general term, is not borne out by
the Rules. In fact this argument seeks to change the express language
of the Rules. The language of the Rule 28 is clear. This Rule states
that on the day next succeeding the last date fixed for withdrawal of
candidature, the Returning Officer shall prepare and publish in
FORM 'E-7', a list of contesting candidates, that is to say, the
candidates whose names have been finally accepted and who has not
withdrawn their candidatures within the prescribed time on the
notice board of his office. As per Rule 31, the death of the
Contesting Candidate is the trigger for the exercise of Rule 31. The
use of the phrase "that is to say" is clear and deliberate. Not only a
term Contesting Candidate is used but it is defined as what it means.
There no merit in the stand of the State Election Authority that this
is not a definition or it is only in the context of symbols. Nowhere
JPP 26 WPSt.22824.22 - 22826.22.doc
else in the Rules the phase Contesting Candidate is defined. The
concept of Contesting Candidate is as per Rule 28, read with Form
E-7. The State Election Authority endeavours to shift the stage of
candidate becoming a contesting candidates, to stages prior to the
fifth under Rule 26. They would be contrary to the language of
Rule 28 and the scheme of Rules of 2014. There is no definition of
the contesting candidate to be found in the Rules of 2014 apart from
the one mentioned in Rule 28 of the Rules of 2014. In the body of
Rule 31, there is a specific reference to a Contesting Candidate.
This Rule states that if a Contesting Candidate dies and a report of
his death is received by the Returning Officer before the
commencement of the poll, the Returning Officer shall, upon being
satisfied of the fact of the death of candidate, countermand the poll .
There is no ambiguity in this Rule. Though it is contended that the
heading of Rule 31 refers only to a 'Candidate', the heading cannot
be read in isolation and cannot change the meaning of the Rule,
which is otherwise clear. We find no ambiguity in these Rules.
23. Thus the plain reading of the Rules of 2014 show that
the Contesting Candidate is one whose name appears in the list in
Form E-7 and upon the death of this Contesting Candidate, the
election can be countermanded under Rule 31. As to our repeated
query to the learned Counsel for the State Election Authority as to
what would be the absurdity if this plain meaning of Rules is
adopted, the learned Counsel for the Election Authority could only
JPP 27 WPSt.22824.22 - 22826.22.doc
refer to one situation. That is if the Election Authority does not
have knowledge of the death of the candidate before the last date of
withdrawal of nomination and because of which name appears in the
list of Contesting Candidates. However, this fact situation is entirely
different. It is a situation of a mistake. It does not arise for
consideration in the present case. Furthermore, it is also not that in
this situation, there is no guidance under the Rules of 2014. Rule 31
refers to the "report of the death of the contesting candidate" being
received by the Returning Officer before the commencement of the
poll. The decision of the Division Bench of this Court in the case of
Rameshlal Tejvani relied upon by the State Election Authority arose
from the fact situation where a candidate, whose nomination paper
was accepted, passed away before the withdrawal of nomination. As
the information of his death was not available, he figured in the list
of contesting candidates. It is in this context the Division Bench
observed that the contesting candidate could not be given an
inflexible meaning because if he has passed away, his inclusion in the
list of contesting candidates would not be of much relevance.
Further, we don't need to comment and conclude on this situation as
it does not arise for consideration in this case. The case at hand is
the one where the candidate has expired before the withdrawal of
nomination, his name does not appear in the list of the contesting
candidates, and the information of his death was received prior to
the commencement of the poll.
JPP 28 WPSt.22824.22 - 22826.22.doc
24. This Court in the case of Vivek Bhaiyasaheb Deshmukh
has interpreted Rules 26 and 29 of the Maharashtra Specified
Cooperative Societies Election to Committee Rules, 1971. There is
no dispute that the language of these Rules and Rules 28 and 31 of
the Rules of 2014 is the same. The judgment squarely covers the
issue; therefore, a substantial part of the same is reproduced as
below.:-
"2. By this petition, the petitioners impugn the order
passed by the Collector, Yavatmal postponing the
election to respondent no.3 Society from the Cotton
Growers Constituency. The Collector, Yavatmal had
invoked the provisions of Rule 29 of the Maharashtra
Specified Cooperative Societies Election to Committee
Rules, 1971 as, one of the candidates, who had filed his
nomination form, had expired on 08.03.2011.
3. The respondent no.2 had published the election
program for electing the Board of Directors of
respondent no.3 Sut Girni. The petitioners and certain
other persons had filed their nomination papers from
Cotton Growers Constituency as seven directors were to
be elected from Cotton Growers Constituency.
According to the election program, the nomination
forms were to be filed on or before 23.02.2011 and the
dates for withdrawal of the nomination form was
25.02.2011 to 11.03.2011. Before the last date for
withdrawal of the nomination, one of the persons, who
had filed the nomination, namely Rajabhau Yenkar,
expired on 08.03.2011. Though Shri Rajabhau Yenkar
had expired before the list of contesting candidates was
declared or before the last date of withdrawal of
nominations, the Collector, Yavatmal, by exercising
JPP 29 WPSt.22824.22 - 22826.22.doc
power under Rule 29 of the Rules of 1971 stayed and
postponed the election from the Cotton Growers
Constituency. The order dated 10.03.2011 is impugned
by the instant petition.
4. Shri Parkhi, the learned counsel for the
petitioners, took this Court through the provisions of
Rule 26 and Rule 29 of the Rules of 1971 to canvas that
Rajabhau Yenkar was not a candidate, whose
nomination paper was finally accepted by the Returning
Officer and, hence, he was not a "contesting candidate"
within the meaning of the term under Rule 29 of the
Rules of 1971. The learned counsel for the petitioners
submitted that the provisions of Rule 29 could have
been invoked by the Collector only if one of the
"contesting candidates" died and a report of his death
was received by the Returning Officer. In this case,
according to the learned counsel for the petitioners, Shri
Rajabhau Yenkar could not have been said to be a
"contesting candidate" as he had expired before the last
date of withdrawal of nominations. Hence, since his
name did not appear in the list of "contesting
candidates", as prepared by the Returning Officer,
according to the learned counsel for the petitioners, the
Collector, Yavatmal had no jurisdiction to stay or
postpone the election.
5. Shri Dharmadhikari, the learned Assistant
Government Pleader appearing on behalf of the
respondent nos.1 and 2, submitted that Rajabhau Yenkar
had filed his nomination form and since he was a
"contesting candidate" till the date of his death on
08.03.2011, the Collector, Yavatmal rightly invoked the
jurisdiction under Rule 29 of the Rules of 1971 to stay
and postpone the elections. The learned Assistant
Government Pleader sought for the dismissal of the writ
JPP 30 WPSt.22824.22 - 22826.22.doc
petition.
6. Shri Narwade, the learned counsel for the
respondent no.3, supported the case of the petitioners
and submitted that the impugned order dated
10.03.2011 suffers from a jurisdictional error and the
same is liable to be set aside.
7. On hearing the learned counsel for the parties and
on a perusal of the Rules of 1971, it appears that the
Collector, Yavatmal did not have jurisdiction to pass the
order dated 10.03.2011 staying and postponing the
election from the Cotton Growers Constituency. On a
reading of Rule 26 of the Rules of 1971, it is clear that
the list of contesting candidates is prepared on the date
succeeding the last date fixed for withdrawal of the
candidature and this list includes the candidates, whose
nomination papers have been finally accepted. In the
instant case, the name of Rajabhau Yenkar could not
have been included in the list of "contesting candidates"
as he expired on 08.03.2011, before the list of contesting
candidates was declared by the Returning Officer on
12.03.2011. Shri Rajabhau Yenkar was, therefore, surely
not a "contesting candidate" as he had expired before the
last date of withdrawal of nomination, and his name
could not have appeared in the list of contesting
candidates. A reading of Rule 29 shows that the
provisions of Rule 29 can be invoked by the Collector
for postponing or for declaring the new election
program only if a "contesting candidate" dies before the
commencement of the poll. In the instant case, no
doubt, Rajabhau Yenkar had died before the
commencement of the poll, but, he was not the
"contesting candidate" as his name did not appear in the
list of contesting candidates, declared by the Returning
Officer on 12.03.2011. Since Rajabhau Yenkar expired
before the last date of withdrawal of nomination and
JPP 31 WPSt.22824.22 - 22826.22.doc
since his name did not appear in the list of contesting
candidates, the Collector, Yavatmal did not have
jurisdiction to stay or postpone the elections by invoking
the provisions of Rule 29 of the Rules of 1971. The
impugned order dated 10.03.2011 suffers from a
jurisdictional error and is, therefore, liable to be quashed
and set aside.
(emphasis supplied)
The view taken by the learned Single Judge in Vivek Bhaiyasaheb
Deshmukh follows the well settled principles of statutory
interpretation. In that case also it was urged by the Respondent -
Election Authority that the candidate had filed his nomination form
and thus he be treated as a contesting candidate till the date of his
death. This argument was expressly negatived relying on the
language of the Rules. By referring to the factual situation which is
totally different than the one at hand, the State Election Authority
cannot distort the plain scheme of the Rules of 2014.
25. As we have observed the scheme of Rule 28 read with
Rule 31 is clear and the present case will be governed by the joint
reading of Rule 28 and Rule 31 of the Rules of 2014 only and the
directions dated 18 April 2022 cannot over ride the same to that
extent. Under Rule 3(v) of Rules of 2014, which is relied upon by
the State Election Authority, the State Election Authority has powers
to issue special or general orders or directions for free and fair
election which directions are not to be inconsistent with the
JPP 32 WPSt.22824.22 - 22826.22.doc
provisions of the Act and the Rules. This is a residuary power to
cover the areas not specifically covered by the Act and Rules to
make the conduct of the election free and fair. Plain reading of Rule
3(v) is that the statutory scheme under the Act or the Rules framed
therein cannot be modified by exercise of powers under Rule 3(v).
Therefore, the directions issued by the State Election Authority on
18 April 2022 under Rule 3(v) will have to be harmoniously read
along with the Act and Rules. Therefore, wherever there is specific
provision under the Act or the Rules, the same will override the
directions dated 18 April 2022. These directions will govern only
those areas which the Act and Rules do not specifically cover. As to
whether in situations other than the one at hand, the directions
dated 18 April 2022 would apply or not is a question that has not
arisen for our consideration.
26. The contention that the Petitioners are not prejudiced
and the other candidates are not joined overlooks the main thrust of
the Petitioner's argument that the order of countermand is without
jurisdiction. The power to countermand the election is conferred on
the State Election Authority not to be exercised at the own sweet will
but the jurisdictional facts for the exercise of this power must exist.
If the jurisdictional facts are absent, then the order countermanding
the election will be without jurisdiction. We have found that the
impugned order of countermanding the election is contrary to the
scheme of Rules of 2014 and the jurisdictional facts were not present.
JPP 33 WPSt.22824.22 - 22826.22.doc
The impugned order of countermanding the election is, without
jurisdiction.
27. The contention of the State Election Authority based on
the decision of the Hon'ble Supreme Court in the case of I.K.Gujral
is misplaced. In this case, it was argued that countermanding of an
election is not permissible as it thwarts the course of the election. It
is in this context the Hon'ble Supreme Court held that
countermanding, being an integral part of the election, cannot
thwart the election. The Petitioners have also not argued that
countermanding per se is not permissible. The argument of the
Petitioner is that countermanding is permissible in a particular fact
situation which, if does not exist, the exercise of countermanding will
not be permissible. Neither the Petitioners contend that
empowering the Election Authority to countermand the election
process is unconstitutional; therefore, the observations of the
Hon'ble Supreme Court that conferment of such powers on the State
Election Authority is not unconstitutional or illegal, does not arise
for consideration.
28. Therefore, to conclude, that the exercise by the State
Election Authority to countermand the election to the Karkhana, on
the ground that the candidate - Mr. Baburao Pacharne has expired is
without jurisdiction as Mr. Baburao Pacharne was not a contesting
JPP 34 WPSt.22824.22 - 22826.22.doc
candidate whose name had appeared in the list of contesting
candidates in Form E-7. Therefore, the order of countermanding,
being without jurisdiction, will have to be quashed and set aside. The
State Election Authority will have to be directed to proceed with the
election of the Karkhana from the stage it was postponed on account
of the order dated 15 July 2022 issued by the State of Maharashtra.
29. In Writ Petition (St.) No. 22824 of 2022 and Writ
Petition (St.) No. 22826 of 2022, the impugned order of
countermand by the State Election Authority dated 30 September
2022, is quashed and set aside. The Respondent Nos.3 to 5 will start
the election process of Raosahebdada Pawar Ghodganga Sahakari
Sakhar Karkhana from the stage it was deferred in view of the order
dated 15 July 2022 passed by the State Government. Rule is made
absolute in the above terms in these Petitions.
30. As regards Writ Petition Nos. 9499 of 2022 and 9503 of
2022, the impugned resolution dated 15 July 2022 has ceased to
operate beyond 30 September 2022 and, therefore, the challenge in
these Petitions does not survive. These Writ Petitions are accordingly
disposed of. The Interim Applications are also disposed of.
SHARMILA U. DESHMUKH, J. NITIN JAMDAR, J.
