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IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari A.D. Mane, JJ.
Chapadgaon Vividh Karyakari Seva Sahakari
Society, Chapadgaon others.... Petitioners.
Versus
Collector of Amhednagar others .... Respondents.
Writ Petition No. 943 of 1986, with Writ Petition Nos. 607, 825 of 1987, 2690, 5397 of 1987, 2140 and 2741 of 1989, decided on 23-8-1989.
Advocates appeared :
In W.P. No. 943/86, 607/87, 825/87 W.P. 5937/87
B.R. Naik with Y.R. Naik, for petitioners
A.S. Bobade Adv. General with S.B. Raghuvanshi, AGP, for R. No. 1 and 2.
Bhimrao N. Naik with V.B. Pajure for R. No. 3, 4, 5 to 7 served.
In W.P. No. 2690 of 1988
C.J. Sawant with Vijay Patil, for petitioners.
A.S. Bobade, Adv. General with R.B. Raghuvanshi, AGP, for R. No. 1, 2 and 11.
In W.P. Nos. 2740 2741 of 1989.
C J Sawant Vijay Patil, S.B. Mhase and N.P. Chapalgaonkar, for petitioners
A.S. Bobade Adv General with R.B. Raghuvanshi AGP, for R. No. 3.
Prashant Naik with R.N. Dhorde for R. No. 4
Apart from this it is by now well settled that the rule should be consistent with the provisions of the Act, and if a rule goes beyond what the Act contemplates, the rule must yield to the Act. Section 73-G, deals with the conduct of elections to the Committees of specified societies. According to the learned counsel for the petitioner it is quite obvious that the Committee is to be elected by the general body of the members of society. If a person is a member of a society and is wrongfully excluded, then he is a person aggrieved within the meaning of Section 144-T of the Act. Section 144-X empowers the State Government to make rules to regulate various stages of elections, including preparation of list of voters. Therefore depending upon the facts and circumstances of each case if it could be demonstrated that a member who intends to file an election petition, is an aggrieved party, then notwithstanding Rule 74 of the rules, he will be entitled to file an election petition. No general rule can be laid down in that behalf since it must depend upon the facts and circumstances of each case.
Rules 73, 74.
See Maharashtra Co-operative Societies Act, 1960, Section 114-T.
Sections 73-G, (1) (added by Mab. Act 45 of 1983), 144-T, 73-C and 151-A -Maharashtra Co-operative Societies Rules, Rules 71, 16, 4 (1), 74 and 81-Constitutlon of India Articles 14, 116-Processlng Society Specified Society - Constitutional Validity of Section 144- T -Elections - Right to contest elections Nature and Scope-Names of the petitioners not In voters list neither voters nor candidates and deprived of their right to challenge the election Petition-Maintainability Validity of Section 73-G-Period for filing appeal under Section 73-G-Dlsputes relating to elections to specified Societies and other Societies not comparable - that classification bas got a nexus to the object of the Act-Special procedure was applicable to specified Societies, which belong to different and special class-In consistency or repugnancy between substantive provisions of the Act and Rules Substantive provision to prevail-Rule 81 covered challenges to be raised In an election petition-If other challenges not enumerated In Rule 81, but can be raised under Section 144-T-Petitioner not debarred from raising such challenge-Held, since the specified Societies belong to a class which was special and distinct from other class of Societies, these provisions cannot be declared as ultra vires- Therefore, Section 144-T Cannot be struck down as violative of Article 14 of the Constitution-AIR 1987 SC 1117 followed-(Election-Co-operative Society Specified Society-Constitutional Validity of Section 144- T -Interpretation of statutes-Construction Rules).
It Is by now well-settled that a right to vote or to stand as a candidate for election Is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it. Where a right or liability is created by a statute which gives a special remedy for enforcing it, then the remedy provided by it alone can be availed of. The right to contest election or to file an election dispute is not common law right and, therefore, so far as the specified Societies are concerned, said right will have to be exercised under Section 144-T of the Act.
Section 144- T was enacted to provide for a speedy machinery for adjudication of election disputes relating to big institutions the adjudication contemplated is quasi judicial and the Commissioner or the Specified Officer is bound to follow the principles of natural justice while adjudicating the disputes. Sub-section (3) of Section 144-T provides that in exercising the functions conferred under this Chapter, the specified officer will have the powers as are vested in a Court and then these powers are enumerated. Under sub-section (2) of Section 144-T it is provided that such election petition shall be disposed of as expeditiously as possible. The power is conferred on high placed officers. The power is to be exercised objectively and the Commissioner or the specified officer is expected to observe the principles of natural justice and pass a speaking order. Therefore, mere absence of corrective machinery by way of appeal or revision, will not render the provision arbitrary or invalid. More so when the said order is amenable to writ jurisdiction of this Court under Article 226 or 227 of the Constitution of India.
The Legislature thought it fit to confer power of resolving disputes relating to the elections to the specified Societies, upon them. The authority chosen is higher in rank to the Collector, who is expected to conduct the elections. Therefore, we do not find any infirmity in choosing such high officers for resolving election disputes. It cannot also be forgotten that the power is conferred upon the pre-existing authority appointed under the provisions of the Maharashtra Land Revenue Code. Hence it cannot be said that the appointment of the Commissioner or the Additional Commissioner is in any way arbitrary or Section 144-T does not provide for just and adequate remedy to resolve the election disputes.
Therefore, elections for other Societies cannot be compared with the elections to the specified Societies which are to be conducted under Chapter 11-A of the Act. Disputes relating to elections to specified Societies and other Societies are not comparable. The classification has got a nexus to the object of the Act. The special procedure is applicable to specified Societies, which belong to different and special class.
It is not correct to say that in case of Society specified by or under Section 73-G no period for filing appeal is provided by Section 152-A of the Act. Section 152-A will have to be read as a whole and harmoniously. Three days period provided for filing appeal, by necessary implication, will govern the appeal qua specified Societies also. It is true that though Section 144-T came to be amended, the State Government has not amended Rule 73. However it is quite obvious from the said rule that the election petition is to be filed in accordance with the provisions of Section 144- T. Therefore by necessary implication, rule also stand. amended and in action on the part of the State Government to correspondingly amend Rule 73 will not affect amended provisions of Section 144-T of the Act, which confers power upon the officer not below the rank of Additional Commissioner of the division authorised by the State Government in that behalf. It is by now well settled that if there is any inconsistency or repugnancy between the substantive provisions of the Act and the Rules, then it is the substantive provision which must prevail.
As a matter of fact Rule 81 practically covers challenges which could be raised in an election petition. If there are any other challenges which are not enumerated in Rule 81 but could be raised under the substantive provisions of Section 144- T of the Act, then the petitioner is not debarred from raising the said challenges. The contention that since practically the rules relating to filing of election petition and its trial have been bodily lifted from the Reorientation of People Act, the Legislature was obliged to create similar forum for filing the election disputes or petition, is also wholly untenable.
Apart from this it is by now well settled that the rules should be consistent with provisions of the Act, and if a rule goes beyond what the Act contemplates, the rule must yield to the Act. Section 73-C, deals with the conduct of elections to the Committees of specified Societies.
2. Respondent No. 3 in Writ Petition No. 943 of 1988 i.e. Shri Jagdamba Sahakari Sakhar Karkhana Ltd. is registered under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred as to the Act) as a Processing Society. It has set up a sugar factory with crushing capacity of 850 m.t. per day. The area of operation of the society extends to Karjat Taluka of Ahmednagar district. At the relevant time the society had 4200 individual members and 26 Co-operative Society members. The said society is a specified society within the meaning of section 73-G of the said Act. In the elections held on 26-3-1983 the Directors of this specified society were elected. One Shri K.R. Deshmukh was elected to the Board of Directors both from Producers constituency as well as from the Co-operative Societies constituency and, therefore, he was required to vacate one seat. On 30-3-1983 Shri Deshmukh resigned as Director from the Co-operative Societies constituency. Consequently a vacancy arose and fresh election became necessary. On 26-12-1983 section 73(1) was added by Maharashtra Act No. 45 of 1983 which states that upon resignation of a candidate who is elected to more than one seat, next candidate securing highest number of votes shall be declared elected. However, since the said amendment had no retrospective effect, a by-election under rule 72 became necessary. Practically after a period of 3 years on 6-1-1986 the Collector of the district declared election programme under rule 16 of the Rules, for electing one person from the Co-operative Societies constituency, on the basis of voters list as on 31-12-82. The Collector did not prepare any fresh voters list under rule 4(2) of the Rules. According to the petitioners, after 31-12-1982, out of 25 Co-operative Societies member, 2 had ceased to be voters and new members were also were enrolled, two of them being petitioners 1 and 2 in the said writ petition. Respondent Nos. 4 and 6 i.e. Takale and Bavedkar filed their nomination papers Shri Bavadkar withdrew his nomination as a delegate of Mirajgoan Bhag Dudh vyavasaik Sanstha Ltd. As a result of this only one candidate remained in the field i.e. respondent No. 4 Shri Takale. Therefore he became entitled to the declared elected un-opposed for the vacancy in the Co-operative Societies constituency. The petitioners were entitled as members after 31st December 1982. However, their names were not included in the voters list. On 29-1-86 the Collector declared Shri Takale elected unopposed in the said by election. According to the petitioners since the petitioners were neither voters nor candidates they were even deprived of their right to challenged the election in view of the provisions of rule 74 of the Rule. Hence they have no other alternate remedy but to file present writ petition. It is not necessary to reproduce the facts of other writ petitions since in all these writ petitions mainly the validity of section 144-T of Act is challenged.
3. Section 144-T of the Act, which is germane for deciding the issue reads a under :---
"144-T- (1) Notwithstanding anything contained in section 91 or any other provisions of this Act any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held (or to an officer not below the rank of Additional Commissioner or a Division authorised by the State Government in this behalf (hereinafter in this section either of them as the context may require is referred to as "the specified officer")
(2) Such reference may be made by an aggrieved party by presenting an election petition to (the specified officer), within a period of two months from the date of declaration of the result of the election,
Provided that, (the specified officer) may admit any petition after the expiry of that perio
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