A Returning Officer appointed to conduct elections under section 73 of the Maharashtra Co-operative Societies Act, 1960 is amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India.

Headnote:
ELECTION - CO-OPERATIVE SOCIETY - WRONGFUL REJECTION OF NOMINATION PAPER - WRIT PETITION - MAINTAINABILITY - RETURNING OFFICER - WHETHER AMENABLE TO WRIT JURISDICTION - BYE-LAWS - WHETHER HAVE FORCE OF LAW - STATUTORY DUTY - WHETHER CAST ON RETURNING OFFICER - INTERFERENCE BY HIGH COURT - PRINCIPLES.
Fact of the Case:

Petitioner challenged the rejection of his nomination paper for the election of members of the Managing Committee of a co-operative society by the Returning Officer on the ground that he had failed to submit the declaration as contemplated by section 48 clause (a) of the Maharashtra Co-operative Societies Act, 1960. The petitioner contended that the rejection was unjustified as he had made the declaration in 'L' form under section 48 of the Act. Alternatively, it was contended that even if he had not given the declaration, the Returning Officer could not have rejected his nomination on false and frivolous grounds.
Finding of the Court:

1. A writ petition challenging the order of a Returning Officer rejecting or accepting a nomination paper for an election to the Managing Committee of a co-operative society is maintainable under Article 226 of the Constitution of India. 2. A Returning Officer appointed to conduct elections under section 73 of the Maharashtra Co-operative Societies Act, 1960 is amenable to the jurisdiction of the High Court under Article 226 of the Constitution. 3. The bye-laws of a co-operative society, though not having the force of law, are binding on the members and the Returning Officer is required to comply with them while conducting elections. 4. The Returning Officer is cast with a statutory duty to comply with the provisions of the Act, the Rules, and the Bye-laws in conducting elections. 5. The High Court can interfere with the order of the Returning Officer rejecting or accepting a nomination paper if it is found to be patently erroneous, without jurisdiction, or if it results in the election being held up or causing public inconvenience.
Issues: 1. Whether a writ petition challenging the order of a Returning Officer rejecting or accepting a nomination paper for an election to the Managing Committee of a co-operative society is maintainable under Article 226 of the Constitution of India? 2. Whether a Returning Officer appointed to conduct elections under section 73 of the Maharashtra Co-operative Societies Act, 1960 is amenable to the jurisdiction of the High Court under Article 226 of the Constitution? 3. Whether the bye-laws of a co-operative society have the force of law and are binding on the Returning Officer while conducting elections? 4. Whether the Returning Officer is cast with a statutory duty to comply with the provisions of the Act, the Rules, and the Bye-laws in conducting elections? 5. Under what circumstances can the High Court interfere with the order of the Returning Officer rejecting or accepting a nomination paper?
Ratio Decidendi: 1. The High Court's power to issue writs under Article 226 of the Constitution is not barred even in election matters, provided the constitutional bar under Article 329 is not attracted. 2. A Returning Officer, though not a statutory authority, is required to perform a statutory duty in conducting elections and is, therefore, amenable to the writ jurisdiction of the High Court. 3. Bye-laws of a co-operative society, though not having the force of law, are binding on the members and the Returning Officer is required to comply with them while conducting elections. 4. The Returning Officer is cast with a statutory duty to comply with the provisions of the Act, the Rules, and the Bye-laws in conducting elections. 5. The High Court can interfere with the order of the Returning Officer rejecting or accepting a nomination paper if it is found to be patently erroneous, without jurisdiction, or if it results in the election being held up or causing public inconvenience.
Final Decision: The petition challenging the rejection of the petitioner's nomination paper was dismissed on merits as the Court found that the Returning Officer had not erred in rejecting the nomination paper due to the petitioner's failure to submit the required declaration.

JUDGMENT - Chanditrkar, Actg. C. J.-This petition under Art. 226 of the Constitution of India raises an important question as to whether the wrongful rejection or acceptance of a nomination paper by a returning officer appointed for con- ducting an election of members of a managing committee to be constituted under section 73 of the Maharashtra Co-operative Societies Act, 1960 (here inafter referred to as “the Act”) can be challenged under Article 226 of the Constitution.

2. The co-operative society in the instant case is known as Arjunwada Vividh Karyakari Seva Sahakari Society Ltd., which was registered under the Bombay Co-operative Societies Act, 1925 and is now deemed to be registered under the Act. The main business of the society consists of providing loans, fertlizers, seeds and other agricultural implements to the agriculturists-members. The day to day management of the society is vested in a Managing Committee duly constituted by virtue of the provisions of section 73 of the Act which provides that the management of every society shall vest in a committee constituted in accordance with the Act, the Rules and the Bye-laws.

3. The election programme for the election of members of the Managing Committee was declared by the present Managing Committee, according to which, the last date for filing nominations was 16th August 1982 the date for scrutiny of nominations was 19–8-1982 ; the date for publication of valid nomination was 20–8-1982 and the date for voting, counting and declaration of results was 2–9-1982.

4. In all, 14 nominations were received for the membership of the Managing Committee, out of which 9 nominations were of persons who belonged to the petitioner's group. But these, according to the petitioner, were rejected on 19th August 1982 by respondent No. 3, who is the Returning Officer, on false and frivolous grounds. Thgre is no dispute that the nomination papers have been rejected on the* ground that the candidates have failed to submit the declaration as contemplated by section 48 clause (a) of the Act. .

5. Clause (a) of section 48 of the Act reads as follows : - “Notwithstanding anything contained in this Act or in any other law for the time being in force,-

(a) any person who makes an application to a society of which he is a member, for a loan shall if he owns any land or has interest in any land as tenant, make a declaration in the form prescribed. Such declaration shall state that the applicant thereby creates a charge on such land or interest specified in the declaration for the payment of the amount of the loan which the society may make to the members in pursuance of the application, and for all future advance (if any) required by him which the society may make to “him as such member subject to such maximum as may be determined by the society, together with interest on such amount of the loan and advance...”

The relevant portion of bye-law 12 of the Society made in exercise of the power under section 165 clause (xxx) provides that any person who is required to make a declaration as required by section 48 of the Act and rule 48 of the Maharashtra Co-operative Societies Rules 1961 (hereinafter referred to as “the Rules”) will not be entitled to exercise any right as a member unless he has made such a declaration”. Rule 48 of the Rules deals with “Form of* declarations to be made by members borrowing loans from certain societies and conditions on which charge in favour of a society shall be satisfied”. Relevant clauses (1) and (2) of rule 48 read as follows: -

“(1) A declaration to be made under elauses (a) and (b) of section 48 shall be in Form 'L'.

(2) A register of such declarations shall be kept by the society in Form 'M.'”

6. According to the petitioner, the rejections of the nomination papers was unjustified because the declaration in 'L' form under section 48 of the Act is noted in VI1/XII extracts under “other rights” column and that all the six persons including the petitioner had made their declarat

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Judicial Analysis