Raghubhai Manjibhai Mungra vs Jamnagar District Cooperative ...
2021 Latest Caselaw 294 Guj

       C/SCA/16961/2020                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16961 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================

1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?

2     To be referred to the Reporter or not ?                          NO

3     Whether their Lordships wish to see the fair copy of the         NO
      judgment ?

4     Whether this case involves a substantial question of law         NO

as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAGHUBHAI MANJIBHAI MUNGRA Versus JAMNAGAR DISTRICT COOPERATIVE BANK LTD. & 1 other(s) ========================================================== Appearance:

MR PK JANI, SENIOR ADVOCATE WITH MR VIRAL K SHAH(5210) for the

MS MANISHA SHAH, GOVERNMENT PLEADER WITH MS AISHVARYA GUPTA, AGP for the Respondent(s) No. 2,3,4 MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR DIPEN DESAI(2481)

MR UMANG R VYAS(5595) for the Respondent(s) No. 1 ==========================================================

CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 11/01/2021

CAV JUDGMENT

1. By this petition under Article 226 of the Constitution of India,

the petitioner has prayed for a writ of mandamus or any other writ,

order or direction for quashing and setting aside the order dated

23.12.2020 passed by the Returning Officer, Jamnagar District

Cooperative Bank Ltd. By the aforesaid order, the objections

raised by the petitioner requesting the Returning Officer to hold

and declare that the respondent No.5 is not eligible and qualified to

contest the election was turned down.

2. The facts in brief are as under:

* The Jamnagar District Cooperative Bank Limited ('the Bank'

for short) is a cooperative society and "a specified society"

u/s. 74(C) of the Gujarat Cooperative Societies Act. The

election to the Bank which is a specified society u/s. 74(C) of

the Act was due. Accordingly, a preliminary voters list was

published on 23.11.2020 under Rules 4 and 6 of the Gujarat

Specified Cooperative Societies (Election to Committees),

Rules, 1982 (hereinafter referred to as the `Rules of 1982').

An election programme was published on 4.12.2020,

nomination papers had to be filed between 14.12.2020 and

19.12.2020 and the elections for the Bank were scheduled to

be held on 13.1.2021. The petitioner had filled in form to

contest the election from the Dhrol Constituency. Even the

respondent No.5 filled in such form from the same

constituency. The respondent No.5 figured in the list of

candidates from the Dhrol Constituency.

* On 20.12.2020, the petitioner filed objections to the

candidature and the nomination of the respondent No.5 for

contesting the election. The objection inter alia was that the

respondent No.5 had been convicted by the Principal Civil Judge

and JMFC, Dhrol in Criminal Case No.128/2008 for offences

punishable u/s.143, 147, 353, 452 of the IPC read with sec.3(A) of

the Prevention of Damage to the Public Property Act, 1984. By a

judgment and order dated 13.10.2020, the respondent No.5 was

sentenced to undergo imprisonment for two years and six months

and was imposed a penalty. According to the petitioner, therefore,

in terms of bye-law 30(ix)(c) of the Bye-laws of the respondent -

Jamnagar District Cooperative Bank Limited, the respondent No.5

was not eligible and qualified to contest the election. Written

submissions were also filed on 23.12.2020 contending that in view

of the conviction of the respondent No.5 by the judicial magistrate

on 13.10.2020 and even when an appeal was filed against the

conviction, the conviction was not stayed by the appellate court i.e.

3rd Addl. Sessions Judge and what was only suspended was the

sentence the respondent no.5 was not qualified to contest. Based

on the objection and the written submissions so filed, the case of

the petitioner was that the respondent No.5 had incurred

disqualification to contest the election in terms of the bye-law and,

therefore, his nomination should be rejected.

* By the impugned order dated 23.12.2020, the Returning

Officer rejected the objections of the petitioner, paving the

way for the respondent No.5 to contest election to the

Managing Committee of the Bank. Hence, the petition.

3. Mr.P.K. Jani, learned senior counsel has appeared with

Mr.Viral K. Shah, learned advocate for the petitioner through Video

Conferencing. He made the following submissions:

* Mr.Jani invited the attention of the Court to the bye laws of

the Jamnagar District Cooperative Bank Limited, reproduced in the

petition at Page 12 and submitted that as per the bye laws, no

member shall be eligible for being elected for the board of directors

if he has been convicted of a criminal offence or offence involving

moral turpitude. Inviting the attention to the operative portion of the

order of the Judicial Magistrate, dated 13.10.2020, Mr.Jani would

submit that the respondent was convicted of the offences under

the relevant provisions of the IPC read with the Prevention of

Damage to the Public Property Act. The conviction and sentence

was for a period of six months for various offences which in all was

for a period of two years and six months.

* Mr.Jani would then invite the attention of the Court to the

order in the appeal preferred against the conviction by the

respondent No.5 and submit that by the appellate order dated

6.11.2020, only the sentence was suspended and the order of

conviction was not stayed. It was on this count that the petitioner

had extensively lodged objections and filed written submissions

which the Returning Officer dealt with in rejecting the objections

without assigning any reasons.

* He would further invite the attention of the Court to the

provisions of Rule 23(2)(a) of the Rules of 1982 which

provided for scrutiny of nomination papers. He would submit

that in accordance with Rule 23(2)(a), it was incumbent upon

the Returning Officer to reject the nomination since the

respondent No.5 was disqualified for being chosen to fill the

seat by or under the Act, Rules or Bye Laws. The bye law

30(ix)(c) specifically providing for a disqualification on

conviction would entail rejection of a nomination under rule

23(2)(a). Mr. Jani would submit that the Returning Officer did

not deal with any of his submissions and without assigning

any reasons, rejected the objections of the petitioner.

* Mr.Jani invited the attention to the amended portion of the

petition, particularly para 2 where he would submit that the

State of Gujarat had filed Special Criminal Application

No.5779/2020 seeking appropriate orders from the Court to

withdraw the prosecution launched against the respondent

No.5, however the petition was withdrawn on 13.10.2020. He

would submit that the government was out to nip in the bud

the prosecution initiated against the respondent No.5 which

was faulted and the State Government was compelled to

withdraw the petition.

* Mr. Jani would further submit that even the respondent No.5

was aware of the fact that the conviction was not stayed. It

was in these circumstances that he moved an application

Exh.25 before the District & Sessions Judge, in his appeal,

on 30.12.2020 requesting that since the order of the

suspension of sentence has been stayed, and since he is an

MLA for six terms, the conviction also may be stayed. This

abundantly makes clear that the respondent No.5 was

conscious that the order of 6.11.2020 was not a stay of

conviction but only a suspension of sentence. On 1.1.2021,

the respondent No.5 withdrew the application as not

pressed.

* Mr. Jani would submit that on the conclusion of a trial, three

eventualities occur: one is conviction, then the order of sentence

and compensation. What is evident from the facts on hand is that it

is only the sentence that is suspended and the conviction is not

stayed. He would emphasise by reading the operative portion of

the order of the appellate court in support of this submission.

* Mr. Jani would invite the attention of the Court to the

provisions of sec.389 of the Cr.P.C and submit that pending any

appeal by a convicted person, the appellate Court for reasons to

be recorded by it in writing, order that the execution of the

sentence or order be suspended. He would submit that the stay of

conviction cannot be taken as a course naturally open on filing of

an appeal. In support of his submission, Mr.Jani relied on the

decision in the case of Navjot Singh Sidhu v. State of Punjab

reported in 2007(2) SCC 574, he would extensively refer to paras

20, 21 and 22 of the judgment to contend that u/S.389 when an

appeal is filed it is only execution of sentence which can be

suspended. An order of conviction cannot be suspended or stayed

as the same is not capable of being stayed or suspended. He

would submit that in order to maintain purity in political arena, bye

law 30(ix)(c) of the Bank envisages that any person who is

convicted should be disqualified from standing for election. Mr.Jani

also relied on the decision in the case of Ravikant S. Patil v.

Sarvabhouma S. Bagali reported in 2007(1) SCC 673 to contend

that where the execution of the sentence is stayed, the conviction

continues to operate and as is evident in the present case, since

there is no stay of conviction, the order operates and the

respondent No.5 ought to have been declared as uncontested.

* Mr. Jani would therefore submit that even in the

understanding of the respondent No.5, the fact that he moved an

application Exh.25 was vocal enough to suggest that the

conviction is not stayed.

* Mr. Jani would rely on a decision in the case of Zoroastrian

Cooperative Housing Society Ltd. v. District Registrar,

Cooperative Societies (Urban) reported in 2005(5) SCC 632 to

contend that a member cannot contend that bye laws do not bind

him. As held in the decision in the case of Zoroastrian (Supra), it

cannot be said by a Member that the Bye Laws are not operative

and binding. Reliance is also placed on the decision cited at the

bar reported in 2013(3) GLR 2682.

* Pressing into service Sec.74 of the Act, Mr. Jani would

submit that the management of every society shall vest in a

committee to be constituted in accordance with the Act, Rules and

the Bye laws. Therefore, in order to be eligible to be a member of a

committee, especially the managing committee, one needs to

satisfy the qualification as prescribed under the bye laws, which

the respondent No.5 did not.

* Attention was also drawn of the Court to the provisions of

Sec. 145(F) of the Act to submit that in accordance with the

provisions, a person shall be disqualified from being elected as

and for being a member of a committee of any specified society if

he has been convicted by a Court in India for any offence and

sentenced to imprisonment for not less than two years and unless

a period of five years has lapsed since his release. He would

submit that apart from the fact that the respondent No.5 has to

undergo six months' imprisonment for five offences which

tantamounts to an imprisonment for two years and six months, the

bye laws of the Jamnagar District Cooperative Bank are more

stringent with a view to instill the confidence and maintain purity in

the field of cooperative societies to provide a higher level of

disqualification.

* Mr. Jani would also submit that if Sec.145(F)(1A)(ii) is read, it

is open for the society to have provisions in addition to and not in

derogation of any other provisions for disqualification contained in

the Act and, therefore the bye law in question is binding to the

respondent No.5 and the election officer was clearly in error in

rejecting the objections of the petitioner.

* Even by inviting attention to Rule 82 of the Rules of 1982,

Mr. Jani would submit that a person who was disqualified to be

chosen to fill the seat could not have been nominated to contest

the election.

4. Mr.Mihir Thakore, learned Senior Counsel has appeared on

behalf of the respondent No.5. He made the following

submissions:

* Mr. Thakore invited the attention of the Court to the order of

conviction and would submit that when the order of the JMFC is

read, it is six months simple imprisonment to run concurrently for

the five offences for which the respondent No.5 was convicted.

Once the sentence was to run concurrently, the upper limit was six

months. It was only this aspect that became vital in the nature of

scrutiny that the Returning Officer had to undertake in accordance

with the summary inquiry envisaged under Rule 23.

* Mr. Thakore would further submit that the bye law which

provides for a disqualification cannot run counter to the statutory

provisions of the Act and the Rules. Sec.145(F) provides that the

conviction has to be for a period of not less than two years to invite

a disqualification whereas in this case, it was only for a period of

six months. The bye law therefore cannot be pressed into service

as compared to the provisions of Section145 (F).

* Rebutting the submission of Mr.Jani with regard to the

provisions of sec.145(F)(1A)(ii), Mr. Thakore would submit that the

addition provided by this sub clause is only in addition to the

provisions of default as provided in sub clauses (a) to (d) of sub

section 1(A) and cannot mean for an addition to a disqualification

by a bye law. The bye laws cannot override the provisions of the

Act. In support of this submission, Mr.Thakore relied on the

decision in the case of Rajkot District Cooperative Bank Limited

v. State of Gujarat reported in 2015(13) SCC 401. Mr. Thakore

inviting the attention to rule 23 of the Rules would submit that what

was envisaged by the Returning Officer was an inquiry of a

summary nature. He invited the attention of the Court to the

decision of this Court in the case of Arvinbhai Singabhai Gamit

v. Election Officer and Deputy Collector reported in 2012(3)

GLH 81 to submit that the inquiry envisaged was that of a

summary nature and also in support of his submission that there is

an express provision of Sec.145(F) which prescribes for

disqualification for being a member of the committee, the Court

held that there cannot be a disqualification by way of an additional

ground in the bye laws.

* Inviting the attention of the Court to the order of Returning

Officer, he would justify the order of rejecting the petitioner's

objection on the ground that what the Returning Officer had done

was to carry out a summary inquiry in accordance with rule 23 of

the Rules and such an exercise of power cannot be said to be

arbitrary by the Returning Officer. What the Returning Officer had

to see was the bye law and the section and the statutory rule

providing for disqualification. It was not open for him to undertake

the nitty-gritties of interpreting the order of the criminal court in

interpreting whether the order of the JMFC or that of the Appellate

Court meant whether there was suspension of sentence or stay of

conviction in case of a nature of summary inquiry that was not

envisaged for the Returning Officer to do. The order therefore

cannot be said to be in ex facie violation of the Act and the writ

therefore was not maintainable.

* Inviting the attention of the Court to the decisions relied upon

by Mr. Jani especially in the case of Ravikant (Supra), Mr.

Thakore would rely on the relevant paragraphs in the factual

details of the judgment to indicate that these were decisions

rendered in election petitions. Even in the case of in the recent

decision of the Supreme Court, in the case of Saritha S. Nair v.

Hibi Eden in Special Leave Petition (Civil) No.10678 of 2020,

he would submit that these were orders passed challenging orders

of the relevant High Court in an election petition. The question

whether u/s. 389 of the CR.P.C whether conviction can be stayed

or not stayed is not within domain of the election officer to inquire

into.

* Mr. Thakore relied on the decision in the case of Rama

Narang v. Ramesh Narang reported in 1995(2) SCC 513, para

19 thereof to submit that the scope of sec.389 of the Cr.P.C was

discussed and the Court through evolving the judicial trend came

to the conclusion that in cases convictions can or cannot be

stayed, however, in that case, the disqualification was in context of

a Managing Director of a Company and it was not a disqualification

at a pre-election stage.

* Mr.Thakore would also rely on the decision of Supreme

Court in the case of Lok Prahari through its General Secretary

v. Election Commission of India reported in 2018(18) SCC 114

to submit that these were all decisions in context of election

petitions and therefore it was not the stage at hand where this

Court in a petition under Article 226 of the Constitution of India

should interject elections which were at an advanced stage. He

would submit that the elections are now due on 13.1.2021 and,

therefore, finding support from the decision of Ravjibhai

Bhikhabhai Patel v. Chief Officer, Bilimora Nagar Palika

reported in 1982 (1) GLR 611 and especially relying on para 10

thereof, he would submit that it was certainly not a case where a

writ petition under Article 226 ought to be entertained.

* Mr. Thakore would also relied on the decision of Kanubhai

Chhaganbhai Patel v. Director of Agricultural Marketing and

Rural Finance reported in 2004(3) GLR 2718 to submit when the

elections are in an advanced stage, looking to the very nature of

the time schedule, they should not be interjected at this stage.

* Mr. Thakore would also rely on the provisions of sec.145(U)

of the Act read with rule 82 of the Rules, 1982 and submit that an

Election Petition is an efficacious and a speedy remedy. Inviting

essentially to rule 82 which provides for grounds for declaring an

election void, he would submit that one of the grounds on which

the tribunal can interject in an election petition after the elections

when the elections has been materially effected by the improper

acceptance of the nomination. That is the case of the present

petitioner and, therefore, the only remedy that is available is that of

an Election Petition.

* Mr.Thakore would invite the attention of the Court to the

contents of the affidavit-in-reply filed on behalf of the respondent

No.4 especially to page 63. It was specifically stated by him that

he was constrained to file an appeal as he is a member of the

Gujarat Legislative Assembly and if the appeal is not entertained

and conviction stayed, he would entail disqualification. When this

is read in context of the appellate order, the conviction was stayed

and, therefore, even otherwise there was no merit in the

contentions of the petitioner.

5. Ms.Manisha L. Shah, learned Government Pleader

appearing with Ms.Aishvarya Gupta, learned AGP would also refer

to rule 23 and submit that what was envisaged under Rule 23 in

accordance with the decision in the case of Arvindbhai S. Gamit

(Supra) was a nature of a summary inquiry. Inviting the attention

to the orders of the Returning Officer, she would submit that the

Returning Officer in context of the bye law had taken a decision in

the nature of inquiry that he was supposed to conduct.

* She would also submit in support of the submissions

rendered by Mr. Thakore that sec.145(F)(1A)(ii) cannot be

read to mean addition to the disqualification by bye laws but

what was meant was disqualifications in addition to the

default of disqualifications and qualifications akin thereto.

She would also draw support from the decision in the case of

Kanubhai Patel (Supra) and submit that in context of the

summary inquiry that was conducted, the order was just and

proper.

6. In rejoinder, Mr.Jani would submit that it was incumbent on

the Returning Officer to satisfy himself that the nomination was in

accordance with the bye laws. Evident it was that though

Mr.Thakore contended that the withdrawal of the SCA on

13.10.2020 was because on the very day, the respondent No.5

was convicted, admittedly, it was an attempt u/s.321 of the Cr.P.C

to withdraw prosecution.

7. Mr.Jani would submit that it was ironical for the respondent

No.5 to contend that the bye law which has been in force for more

than 30 years and pursuant to which bye laws the member society

continued to be affiliated to the Bank and now turn around to

contend the bye law being contrary to the Act and the Rules.

8. Mr. Jani would rely on the decision in the case of Sau.

Minaxi Murlidhar Ghodke v. Addl. Commissionier, Nashik

Division and others of the Bombay High Court reported in 1997

Mah.L.J.182 and on the decision of the Division Bench of the

Bombay High Court in the case of Pandurang Hindurao Patil v.

State of Maharashtra and others reported in 1983 MahL.J.,

1081 in support of his submission that a writ petition under Article

226 of the Constitution of India is maintainable and that the bye

law is binding. It is not open for the respondent No.5 to wriggle out

of the bye law only because it is inconvenient to him. He would rely

on the decision of the Supreme Court in the case of an educational

institution which held that it is always open for a body to prescribe

for higher qualifications.

* On the decision cited by Mr.Thakore in the case of Rajkot

District Cooperative Bank Limited (Supra), he would submit that

they were in context of demarcation under rule 3(A) of the Rules of

1982. As far as the decision in the case of Arvindbhai Gamit

(Supra) is concerned, he would submit that in the facts of the

case, the same would not be applicable.

9. Having considered the submissions made by the respective

counsels, this Court needs to consider whether the order dated

23.12.2020 passed by the Returning Officer, Jamnagar District

Bank is just and proper and also whether even otherwise would

this Court examine the legality thereof in a writ petition under

Article 226 of the Constitution of India.

10. From the perception of the Returning Officer, his role when a

nomination is filed and the objections of the kind, as advanced by

the petitioner have to be decided, he has to take such a decision

by holding a summary inquiry as envisaged under the provisions of

Rule 23 of the Rules, 1982. Reading sub rule (2) of Rule 23 makes

it abundantly clear that the Returning Officer on such objections

that he may receive after such summary inquiry, if he thinks

necessary may reject any nomination. One of the grounds that is

available to him is that when it appears to him that the candidate is

disqualified for being chosen to fill the seat by or under the Act,

Rules or Bye-Laws.

11. In the facts on hand, on the nomination being filed, the

petitioner, the objector, based on his objections, conveyed to the

Returning Officer that, the respondent No.5's nomination paper be

rejected as he has been convicted in a criminal case on

13.10.2020 and sentenced to undergo simple imprisonment of 2

years and 6 months. While pressing for the rejection of the

nomination, reliance was placed on bye-law 30(ix)(c) of the Bank.

12. Perusal of the written submissions filed before the Returning

Officer would indicate (Page 35) that, submissions, as canvassed

by Mr.Jani, learned senior counsel, were made before the

Returning Officer which in a nutshell were: -

* That, as per sec.74 of the Act, the management of every

society should vest in a committee constituted in accordance

with the Act, Rules or bye-laws.

* That as per bye-law the respondent was convicted of the

offences and made out, on 13.10.2020 and the appellate

Court on 6.11.2020 had suspended the sentence and not

stayed the conviction. Reliance was placed on the decision

on the questions of law vis-a-vis the powers of the Court

under Sec.389 of the Code of Criminal Procedure and the

concept of the interpretation of the appellate orders i.e.

whether the order of 6.11.2020 amounted to suspension of

sentence or stay of conviction.

13. The Returning Officer, before him, had the bye-law, in this

case, bye-law 30(ix)(c) juxtaposed with the provisions of sec.145F

of the Gujarat Cooperative Societies Act, 1961.

14. There can be no dispute as to the principles of law cited at

the Bar, as in the decisions in the case of Navjot Sidhu (Supra)

and Ravikant Patil (Supra) that a conviction would entail a

disqualification.

15. Extensive arguments have been made from the side of the

petitioner to submit that the Returning Officer, based on the

conduct of the respondent No.5, could have had no alternative but

to conclude that the respondent No.5 was convicted hence

disqualified. This was because the candidate / respondent No.5

was himself aware of his conviction not being stayed as reflected

in the application Exh.25 filed before the Sessions Court on

30.12.2020 and his subsequent act of withdrawing the same. In

the opinion of this Court, they were actions, at the hands of the

respondent No.5, after the order of the Returning Officer of

23.12.2020 and therefore not relevant in adjudging the order of the

Returning Officer.

16. The second submission was that the fact of the state

withdrawing SCA No.5779 of 2020 on 13.10.2020 by which its

desire to withdraw prosecution against the respondent No.5 failed.

This withdrawal, in the submission of Mr.Thakore was, as on that

very date, the conviction and sentence were imposed making the

pursuit of withdrawal of prosecution fruitless. The Court would not

want to express any opinion on this aspect as, while examining the

legality of the order of the Returning Officer, the parameters of rule

23(2)(a) of the Rules, 1982 have to be kept in mind.

17. Therefore, before the Returning Officer, while undertaking

the scrutiny of nomination, he had several facts before him:

* The order of 13.10.2020 of conviction and sentence of 6

months each to run concurrently.

* The appellate order of 6.11.2020 and the operative part

thereof which had the subjective interpretation as canvassed

by the petitioner and the respondent No.5.

* The provisions of Bye-Law 30(ix)(c) of the Bank.

* The provisions of Section 145F of the Gujarat Cooperative

Societies Act, 1961 and the Rules of 1982.

18. Reading the bye-law would suggest that, no member shall be

eligible for being elected if he has been convicted of criminal

offence or offence involving moral turpitude. The same is

reproduced hereinbelow:

Bye-law No.30(ix)(c) under Chapter VIII of the bye-laws:

30(1)xxx xxx xxx

(ix) No member shall be eligible for being elected as board of directors.

(c) If he has been convicted of criminal offence or offence involving moral turpitude"

19. Section 145F(1) and Section 145F(1)(c) would read as

under:

145-F DISQUALIFICATION FOR MEMBERSHIP:

"(1) A person shall be disqualified for being elected, as, and for being a member of the committee of any specified society-

(a) if he is a salaried employee of any society (other than a society of employees themselves) or holds any office of profit under any society, except when he holds or is appointed to the office of a Managing Director or any other office under the society declared by the State Government by general or special order not to disqualify its holder;

(b) if he has been convicted of an offence punishable under Section 153A or Section 171E or Section 171F or sub- section (2) or subsection (3) of Section 505 of the Indian Penal Code, 1860 (XLV of 1860), or under Section 145R or clause (a) of subsection (2) of Section 145S of this Act, unless a period of six years has elapsed since the date of his conviction;

(c) if he has been convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years, unless a period of five years has elapsed since his release;"

20. The Returning Officer, would therefore keeping in view the

Act, the Rules or the Bye-Law take a call as to whether a

candidate would stand disqualified for being chosen to fill the seat.

21. Assuming that it was open for the Returning Officer, looking

to the nature of inquiry envisaged under Rule 23, that the

Returning Officer would sit to decide keeping the orders of

conviction and appellate order to interpret the fine distinction

between stay of conviction and suspension of sentence, can his

decision even then be faulted?

22. Addressing, at this stage, the arguments of the respective

counsels, first, whether the bye-laws are binding or the provisions

of the Act, those arguments, from the side of the petitioner have

been made on the basis of its binding nature to the member who

has opted to be governed by such bye-laws. Hence, Shri Jani drew

support from the decision of the Bombay High Court in the case of

Sau.Minaxi Murlidhar Ghodke (Supra) whereas Shri Thakore

would submit that when there is a conflict in the bye-law and the

provisions of the Act, the Returning Officer would keep in mind the

provisions of the Act.

23. In the case on hand, in the nature of a summary inquiry that

the Returning Officer was expected to conduct, it would not be

within his domain to sit over and interpret the ramifications of the

sentence of six months each for the five offences, if defaulted,

when the sentence was to run concurrently on a bare reading of

the order of conviction. He would then have to fall back on the Act

and the provisions thereunder. Reading section 145F(1)(c) would

suggest that a disqualification would entail if a candidate is

convicted by a Court for any offence and sentenced to

imprisonment for not less than two years, unless a period of five

years has elapsed such release. The statutory provision of

section 145F(1)(c) of the Act prescribes that the period of

imprisonment has to be at least 2 years to attract disqualification

whereas the byelaws provides that conviction of less than 2 years

would attract disqualification. As held in the case of Zoroastrian

Cooperative Housing Society Ltd. (supra), it is not the case

here that the bye laws are not binding on the respondent no.5. We

need to note that the provisions of Cooperative Societies Act and

Rules have overriding effect on the provisions of the bye-laws. In

case of conflict between the bye-laws and the provisions of the Act

or Rules, the provisions of the Act or Rules will prevail.

24. Keeping the order of conviction and sentence, the bye-law

and the provisions of the Act, if the Returning Officer has found

that the case of the respondent does not fall within the rigors of

Sec.145F(1)(c), the same cannot be faulted. This is particularly

keeping in mind the nature of summary inquiry that needed to be

conducted. It is well settled legal position that summary inquiry

implies a short and quick procedure instead of or as an alternative

proof the more elaborate procedure ordinarily adopted prescribed

for arriving at a decision. Adjudication upon the question whether

the respondent no. 5 has incurred disqualification considering as to

whether the conviction of respondent no. 5 is stayed or only

sentence is suspended would be entering into the arena of

adjudicatory process.

25. I find support to take such a view from the decision in the

case of Arvindbhai S. Gamit (Supra) para 6 and 7 thereof are

reproduced hereunder:

6.Perusal of the above relevant provisions clearly reveal an integrated scheme providing for a very limited, restricted and expeditious scrutiny of the nomination papers by the Returning Officer, leaving for him only the simple task of deciding upon rejection or acceptance of nominations only on the basis of apparent or reliable and authenticated proof of disqualification incurred by a candidate under Section 145F of the Act. He shall have no jurisdiction or legal authority to delve into the right of the nominee to stand for election if he is already on the voters list and not disqualified, as aforesaid, under the provisions of Section 145F of the Act. Of course, there are three other formal grounds enumerated in Rule 23 (2)

(b), (c) and (d), on which any nomination could be rejected, after affording to the candidate concerned an opportunity to rebut, latest by the next day from the date of scrutiny, the material appearing against him. The provisions of Section 145Y authorizes the State Government to make Rules generally to provide for and regulate all or any of the other matters relating to various stages of the elections, but such Rules are expressly required to be consistent with the Act. Therefore, when express provisions of Section 145F prescribe disqualifications for being member of the committee of any specified society, it is questionable whether the State Government can indirectly amend the provisions of Section 145F by prescribing additional grounds of disqualification in the Rules by including disqualifications prescribed in the byelaws of the society. Even as the validity of the Rules and the byelaws is not challenged in the petition, they could be invoked at proper stage when the list of voters is finalized under Rule6, so as to impart full meaning and effect to Rule 23 (7). That leads to the inescapable conclusion that the authority of the Returning Officer in examining nomination papers and deciding all objections is restricted to only making a summary enquiry, if any, as to whether the candidate has incurred any disqualification for being elected and whether the nomination was in order and complying with the relevant Rules. As the title and language of Rule 23 clearly suggests, it is the scrutiny of nomination papers and, by no stretch, an adjudication of disqualification of the candidate that falls within statutory duty of the Returning Officer. If he transgresses that limit and enters into the area of accepting or collecting evidence regarding

alleged disqualification of a candidate and indulges in exercise of weighing evidence, without any means or power to decide upon genuineness or reliability of any evidence, the minimum requirement of compliance with the principles of natural justice would arise. However, clear operative words in the Rule being 'summary inquiry' and not an adjudication, the Returning Officer would obviously be required to decide the issue of disqualification or rejection or acceptance of the nomination paper only on the basis of material placed before him; and having regard to the provisions of Rule 5, 6 and 23 (7) it would require authentic and genuine documentary evidence about disqualification of the candidate for rejecting his nomination after giving him an opportunity to rebut such evidence. In order to ensure proper, upright and impartial approach of the officers involved in such elections, specific provisions are made in Chapter XIA of the Act, including the provisions as under in Section 145L.

"145L - OFFICERS ETC. AT ELECTION NOT TO ACT FOR CANDIDATES OR TO INFLUENCE VOTING:-

(1) No person who is a Returning Officer or an Assistant Returning Officer or a Presiding or a Polling Officer at an election or an officer or clerk, appointed by the Returning Officer or the Presiding Officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospect of the election of a candidate.

(2) ...............

(3) Any person who contravenes the provisions of sub section (1) or subsection (2) shall, on conviction, be punished with imprisonment which may extend to six months or with fine or with both. (4) An offence punishable under subsection (3) shall be cognizable offence."

7.As seen earlier, in the facts of the present case, admittedly respondent No.1, the election officer had accepted the objections from respondent No.2 and sent written enquiry to SUMUL and received their response, even before the date of scrutiny of nomination papers. He had also permitted, in clear violation of the provisions of Rule 23 (1), two persons posing as secretary and director of the primary society to attend the scrutiny and allowed production of the alleged original record of that society, for respondent No.2 to substantiate that name of

the petitioner did not appear in the monthly payment sheet of the society for the period from 1.6.2011 to 28.2.2012. The monthly payment sheets for a part of the year, even if genuine, may not be conclusive proof of non supply of milk by the petitioner insofar as payments for milk supplied by him were claimed to have been received on his behalf by his son, whose name was reflected against his code number. As recorded in the impugned order and the affidavit of respondent No.1, after some time, the petitioner was shown such record to show his name in the payment sheets; and then it is deposed that the petitioner had failed to produce any document to prove that the record produced by respondent No.2 was not original and genuine, due to which he was left with no alternative but to reject nomination of the petitioner. As against that, it is the specific case of the petitioner that copies of written objections submitted by respondent No.2 were never supplied to the petitioner. Even as authentic certificates issued by his society and SUMUL in favour of the petitioner, annexed to the petition as Annexure D, E and F, clearly reveal that he had supplied milk as required and he was not a defaulter in respect of any outstanding amount, those documents were totally ignored by the Returning Officer.

It was held by the Constitution Bench of the Apex Court way back in the year 1954 in Durga Shankar Mehta v. Raghuraj Singh and Others [AIR 1954 SC 520], in the context of similar provisions of the Representation of the People Act, as under:

"8. ........................... the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. .................. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer.................................................................. "

It was also observed in a different context in Virindar Kumar Satyawadi v. The State of Punjab [AIR 1956 SC 153 (1)] that under Section 36 (2) (of the Representation of the People Act), the Returning Officer has to examine the nomination paper and decide all objections which may be made thereto. This power is undoubtedly judicial in character. But in exercising this power, he is authorized to come to a decision "after such summary enquiry, if any, as he thinks necessary". That means that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case. There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enquiry under Section

36."

The observations made in para 6 would also answer the

proposition canvassed by the respective counsels on the

binding nature of the bye-law. When the Division Bench has

categorically under section 145F prescribed disqualification

for being a member of the committee of any specified

society, it is questionable whether the State Government can

indirectly amend by providing for additional grounds of

disqualification in Rule. By including disqualification in the

bye-laws, the Returning Officer cannot transgress the limits

in the nature of inquiry under Rule 23 to accept and collect

evidence regarding alleged disqualification of a candidate

and indulge in the exercise of weighing evidences without

means and powers to decide upon genuineness and

reliability. The observations of the Supreme Court, in the

case of Ravikant Patil (Supra) in para 17 would reflect the

mindset of the summary inquiry that a Returning Officer

would undertake.

"17. Reverting to the present case, we are not called upon to decide the correctness of the order of stay of conviction dated 26.3.2004. All that requires to be noticed is that on the dates of nomination and election, in view of the said order staying conviction, the appellant was not disqualified. The question whether subsequently the conviction was set aside in appeal or whether the matter is in further challenge before this Court is of no relevance for deciding the point in issue."

26. The Returning Officer was required only to notice that on the

dates of nomination and election in view of the order of conviction,

whether the respondent No.5 was disqualified. The question

whether subsequently the conviction or sentence was suspended

or the ramifications and interpretations were of no relevance, when

viewed in context of section 145F(1)(c) and bye-law 30(ix)(c).

27. The submission that provision of section 145F(1-A)(ii)

empowers the society to make provisions in addition to and not in

derogation to any other provisions for disqualification are in context

of the specific default provisions of section 145F(1A)(a) to (d) and

not otherwise.

28. In examining the fact from the perception of the Returning

Officer, while deciding to reject the objections of the petitioner,

based on what has been discussed hereinabove, it cannot be said

that the exercise of power by the Returning Officer was so

palpably wrong or arbitrary or ex-facie in violation of the statutory

provisions of the Act to make it vulnerable for this Court to exercise

powers under Article 226 of the Constitution of India.

29. Even otherwise, what is canvassed by the petitioner is to

seek disqualification of the respondent No.5 as a candidate for

election to the Jamnagar District Bank. The judgments cited at the

bar, in the case of Ravikant Patil (Supra) & Saritha S. Nair would

reveal that the question of disqualification was in context of

decisions out of election petitions.

30. Even the Division Bench decision of the Bombay High Court

in the case of Pandurang Hindurao Patil (Supra) though the

Division Bench held that a petition may not be rejected on the

ground that such a petition under Article 226 of the Constitution of

India does not lie but it also goes on to add that however in a given

case whether a Court will entertain a petition and will interfere or

not will depend on facts and circumstances of the case.

31. Several decisions have been relied upon by Mr.Thakore in

support of his submission that the only remedy that the petitioner

can invoke is that of an election petition in accordance with the

provisions of Section 145F read with Rule 82 of the Rules 1982. In

the facts and circumstances of the present case, the elections are

in an advanced stage. The elections are scheduled on 13.1.2021.

Extensive arguments were canvassed by the petitioner's and the

respondents' counsels on 7.1.2021. Moreover, as discussed in

detail hereinabove of the petitioner's stand that the nomination of

the respondent No.5 is wrongly accepted, the remedy of an

election petition is one which is efficacious keeping the immediate

holding of the elections also. Interjecting such elections at this

stage would not be in the interest of the election process

particularly when there is a speedy remedy of election petition

which is available.

32. Accordingly, in view of the above, I find no merits in the

petition and the petition deserves to be dismissed and the same is

dismissed. Notice is discharged with no order as to costs. The

Registry is requested to communicate this order through E-mail /

Fax.

[ BIREN VAISHNAV, J.] *** VATSAL