Madhya Pradesh High Court
Sunil Dharmadhikari vs The State Of Madhya Pradesh on 13 October, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 13 th OF OCTOBER, 2023
WRIT PETITION No. 26484 of 2023
BETWEEN:-
1. SUNIL DHARMADHIKARI S/O SHRI BALKRISHAN
DHARMADHIKARI, AGED ABOUT 56 YEARS,
OCCUPATION: DEPUTY MANAGER, MANDAL
BRANCH PUNJAB NATIONAL BANK 291/C,
RAJENDRA NAGAR, INDORE (MADHYA
PRADESH)
2. DHARMENDRA URDHAVARESHE S/O
KRUSHNARAO URDHAVERSHE, AGED ABOUT 56
YEARS, OCCUPATION: SENIOR MANAGER BANK
OF BARODA 114/C, RJENDRA NAGAR, INDORE
(MADHYA PRADESH)
3. DR. SUDHIR KATARIA S/O K.C. KATARIYA, AGED
ABOUT 56 YEARS, OCCUPATION: MEDICAL
OFFICER GOVT. CANCER HOSPITAL M.G.M.
MEDICAL COLLEGE, INDORE R/O 109/B,
RAJENDRA NAGAR, INDORE (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI VINAY VIJAYVARGIYA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH SECRETARY
M.P. RAJYA COOPERATIVE ELECTION
AUTHORITY, BHOPAL (MADHYA PRADESH)
2. THE DEPUTY REGISTRAR M.P. CO OPERTIVE
SOCIETY 123, DEVI AHILYA MARG, SHRM SHIVIR,
JAIL ROAD, INDORE (MADHYA PRADESH)
3. MADHYA PRADESH RAJYA SAHAYAK
NIRVACHAN PRADHIKARI BHOPAL (MADHYA
PRADESH)
4. SAHAKARI UPNAGAR MANDAL GRIH NIRMAN
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 13-10-2023
18:01:52
2
SAHAKARI SANSTHA MARYADIT THROUGH ITS
PRESIDENT MR. SANJAY MISHRA RAJENDRA
NAGAR, JAWAHAR SABHAGRIH RAJENDRA
NAGAR, INDORE (MADHYA PRADESH)
5. SHRI H.P. GOYAL OCCUPATION: CO OPERTIVE
INSPECTOR ND RETURNING OFFICER UPNGAR
MNDAL GRIH NIRMAN SAHAKARI SANSTH
MARYADIT RAJENDRA NAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI BHUWAN DESHMUKH - G.A. FOR RESPONDENT NO.1 AND 2
AND SHRI KARPE PRAKHAR MOHAN - ADVOCATE FOR PROPOSED
INTERVENOR VIJAY CHANDRATRE AND GIRISH UPADHYAYA)
This petition coming on for admission this day, the court passed the
following:
ORDER
The present petition is filed under Article 226 of the Constitution of India
challenging the order dated 9.10.2023 whereby the respondent No.5 has
rejected the nomination form of the petitioners for the election of Board of
Directors of the respondent No.4 Co-operativie Society.
2. The facts of the case are that the petitioners are members of
respondent No.4 Sahkari Upnagar Mandal Grih Nirman Sahkari Sanstha
Maryadit, Rajendra Nagar. The said society is registered under M.P. Co-
operative Society Act, 1960. The respondents started the election process for
election for the post of Board of Directors of respondent No.4 Society. The
petitioners filed their nomination form and they have been rejected on 9.10.2023
passed by the returning officer mainly on the ground that the petitioners have
not filed No Objection Certificate from their respective employer. The
petitioner No.1 and 2 are employees of Punjab National Bank and Band of
Baroda respectively. The petitioner No.3 is Medical Officer of Government
Cancer Hospital, MGM, Indore. The petitioners are member of the Co-
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 13-10-2023
18:01:52
operative Society Sahkari Upnagar Mandal Grih Nirman Sahkari Sanstha
Maryadit, Rajendra Nagar.
3. Counsel for petitioners argued that the rejection of the nomination
paper by the returning officer is patently illegal and arbitrary and contrary to the
provisions of the M.P. Co-operative Societies Act and the Rules framed therein
called M.P. Co-operative Societies Rules, 1962. It is submitted that as per the
provisions of Rule 49-4(d) the returning officer can reject the nomination paper
only on the following grounds. The relevant provisions reads as under:-
"49-E(5)(d): The Returning Officer shall for the
reasons to be recorded in writing, reject a nomination
paper only on the following grounds--
(i) if the nomination paper is not in accordance with the
preceding sub-rule.
(ii) if the candidate is disqualified to be elected or
proposer/seconder is disqualified to vote by or under
the Act, rules or bye-laws of the society."
4. It is submitted that the returning officer could not have rejected the
nomination paper on the ground that No Objection Certificate from the
employer was not submitted. There is no requirement of submission of No
Objection Certificate from the employer. It is further argued that petitioner
No.1 has obtained NOC from the employer and petitioner No.2 and 3 have
informed the employer. It is argued that the returning officer has to examine the
nomination papers in the light of the Rules only and he could not have rejected
the nomination papers on the ground that the petitioners have not obtained
NOC from respective employer. If NOC is not obtained by petitioners they
may be liable for disciplinary action but the nomination form could not have
been rejected. It is further submitted that the election process has yet not been
concluded and the elections are scheduled to take place on 15th October, 2023.
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 13-10-2023
18:01:52
5. Counsel for respondents State and proposed intervener submits that
the election process has already commenced and the remedy for the petitioners
is to raise election dispute u/S.64 of the Act of 1960. At this stage the Court
cannot interfere with the election process. They relied on the judgments passed
by this court in the case of Ganesh & Ors. Vs. State of MP & Ors 2001 RN
411 and the order passed in WP No.3439/2017 Dayaram Dheemar & Ors.
Vs. State of MP & Ors and also in the judgment passed by co-ordinate bench
in WP No.534/2002 Akbar Mohd. Khan & Ors. Vs. State of MP & Ors and
order passed by co-ordinate bench in WP No.13340/2013.
6. After hearing learned counsel for parties, there is no dispute to the
proposition to law laid down by the Courts in various judgments. It is settled
law that ordinarily the High Court should not interfere with the election process
once the election process is started bu there is no absolute bar for exercising
extra ordinary jurisdiction under Article 226 of the Constitution of India. In the
case of Ganesh Vs. State of MP (supra), in para 43, the High Court has held
that High Court can interfere in very exceptional case only where the illegality is
manifest on the face of case.
7. In the light of aforesaid para 43 of the judgment, the facts of the
present case are examined and it is found that there is no requirement for a
candidate who is member of the Co-operative Society to file NOC from the
employer while filing nomination paper. The order passed by the returning
officer is patently contrary to the provisions of Rule 49-E(d). The role of the
returning officer is only to examine that whether the nomination paper is in
accordance with the Rules mentioned in Rule 49-E and also he has to consider
that whether a candidate is disqualified to be elected or proposer or seconder
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 13-10-2023
18:01:52
is disqualified to vote by or under the Act, Rules or bye-laws of the Society.
The disqualification for being candidate or voter for election to Board of
Director of representative or delegate of society is prescribed u/S.50-A.
8. On going through the said provision, this court finds that there is no
such disqualification to be a candidate for election as member of the Board of
Directors for not submitting NOC from the employee.
9. In view of the aforesaid, the impugned order of rejecting the
nomination paper of the petitioners are set aside. The returning officer is
directed to include the name of the petitioners in the list of the contesting
candidate and to allot them symbol and to permit them to contest the elections
which is scheduled to take place on 15.10.2023. Government Advocate is
directed to communicate the order to the concerning returning officer forthwith.
10. With the aforesaid petition is allowed and disposed of.
c.c today.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 13-10-2023
18:01:52
