Shivnarayan Amarchand Paliwal vs Vasantrao Vithalrao Gurjar & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 451

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Desai A.A., J.
Shivnarayan Amarchand Paliwal .... Petitioner.
Versus
Vasantrao Vithalrao Gurjar others.... Respondents.
Writ Petition No. 229 of 1991, decided on 18-9-1991.
Advocates appeared :
V.C. Daga, for petitioner.
S.A. Bobde M.V. Samarth, for respondent No. 1.
D.K. Deshmukh, for respondent No. 3.

Headnote:Sections 144-J and 144-X.
       See Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971, Rules 74 and 76 (2).
       Section 144-T-Maharashtra Specified Co-operative Societies Elections to Committees Rules. 1971, Rules 5 (2) & 81- Complaint under Rule 5 (2) Rejected-Election dispute under Section 144-T-Whether maintainable Rules of 1971 deal with inclusion. preparation of electoral roll and also constituencies-As such non-compliance of any provision of Rules 1971 as prescribed -Is a ground under Rule 8t for challenging election under Section 144-TAs such election dispute under Section 144-T maintainable.
       Rules 5 (2) and 16-Application under Rule 5(2) to cause change in name of representative of society affiliated to specified society- To be presented seven clear days from date notified under Rule 16-Starting point for counting period of limitation-Date as notified under Rule 16 for purpose of sub-rule (2) of Rule 5 would be only he last date for filing of nomination and could not be permitted to mean entire period prescribed for filing nomination.
       Rules 5 (2) and 81.
       See Maharashtra Co-operative Societies Act, 1961, Section 144-T.
       Rules 74,76 (2)-Representation of Peoples Act (43 of 1951)- Section 86 (1) and Maharashtra Co-operative Societies Act (24 lf 1961)-Sections 144-J, 144X-Candidate losing election to Board of Director of a specified co-operative society-Questioning validity of election of elected candidate by presenting election petition before specified officer, said aggrieved candidate not personally presenting election petition and attested copies thereof claim for summary dismissal of petition for total non-compliance of mandatory provisions under Rule 74.
       Held, Summary dismissal of petition could not be legitimately claimed as an inevitable consequence of non-compliance of Rule 74- Term may as used in sub-rule (2) of Rule 76 definitely connotes that dismissal of election petition owing to non-compliance of provisions of Rule 74 would not be an unavoidable result.
       The petitioner could not legitimately claim a summary dismissal of the petition as an unevitable consequence of non-compliance of Rule 74. The term may as engaged in sub-rule 2 of Rule 76 definitely connotes that the dismissal of election owing to non-compliance of provisions of Rule 74 would not be an unavoidable result. It is thus explicit that the dismissal of petition depends on the decision of the specified officer and such a result cannot be claimed ipso facto as a mandate of law.
       The mandate of the provisions of Rule 74 is that the election to the Committees of the specified society could be questioned only by presenting election petition to the Specified Officer and that too by a candidate or member. However, such presentation essentially by the aggrieved, in person and failure thereof to entail an inevitable consequence of dismissal of the petition, could not fairly be an import of the scheme.
       The legislature has used thoughtfully term may in Rule 76 (2) in contradiction to term shall as employed in sub-section (1) of Section 86 of the Representation of Peoples Act, 1951. It is therefore evident that the legislature din not propose to achieve the result of dismissal of petition Rule 76 (2) with the same vigour as envisaged by the Act of 1951.

       Sections 86 (1)-See Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971, Rules 74 and 76 (2).

JUDGMENT - DESAI A.A., J.:---This petition is directed against order dated 20-12-1990 passed by the respondent No. 4, a Specified Officer setting aside the election of petitioner on the Board of Directors of the respondent bank, in exercise of powers under section 144-T of Maharashtra Co-operative Societies Act, 1960 (Act of 1960).

2. The petitioner was a representative of an affiliated sale purchase society on the respondent bank. The bank is a Specified Co-operative Society as envisaged by section 73-G of the Act of 1960. The State Government in exercise of powers under section 144-X of the Act framed the Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971 (The Rules of 1971).

The respondent No. 2, Returning Officer on 21-9-1987 for the purposes of election of the Board of Directors of the bank, under Rule 4 declared a provisional list of voters. He then on 21-10-1987 under Rule 7 declared the final list. On 15-4-1988 the Returning Officer, in accordance with Rule 16 declared the programmed of election, notifying therein 29th April, 1988 as the last date for nomination.

3. One Bhaskar Hardikar was a representative of affiliated Haridas Grahak Sahakari Sanstha, on the Bank. His name was accordingly shown in the final list. This affiliated society by resolution dated 7-4-1988 nominated one Bhupal Rehapade in place of Hardikar as its representative. The Returning Officer on 13-4-1988 received copy of the resolution. Correction accordingly was, however, not carried out. On 20-4-1988 said Bhupal Rehapade filed an objection in pursuance of sub-rule (2) of Rule 5 of the Rules of 1971 for substitution of his name in place of Hardikar. The Returning Officer, however, by order dated 28-4-1988 rejected the application observing that the same is beyond the period of limitation as prescribed under the rule. The Returning Officer then proceeded with the election programme and on 4-6-1988 conducted polling amongst others for the constituency of sale and purchase consumer co-operative store. He permitted Hardikar to cast vote on behalf of the affiliated society. The petitioner and respondent No. 1 Vasantrao Gujar only contested election from the said constituency. The result was declared on 6-6-1988. The petitioner succeeded by securing 15 votes as against the respondent No. 1 who secured 14 votes only.

Respondent No. 1, therefore, questioned the correctness and validity of election by presenting election petition before the respondent, specified officer. The specified officer by impugned order set aside the order dated 20-4-1988 passed by the Returning Officer rejecting the claim of Rehapade and directed to hold the election afresh.

4. Learned Counsel Mr. Dage, for the petitioner and Mr. D.K. Deshmukh, for the bank made a common submission. According to them, the respondent No. 1 has not personally presented the election petition and attested copies thereof. There was as such a total non-compliance of mandatory provisions under Rule 74. Reasonings of the Specified Officer that the said rule merely prescribes a person competent to challenge the election and does not prescribe the mode of presentation of election petition and no discrepancy is noticed in the copy supplied to the petition, are patently wrong.

5. They made a submission that the election is not a common law right. It floats only from the Statutes. The right to challenge the election must be exercised strictly in compliance with provision of the statute. The defect in compliance of Rule 74 is not curable. The election petition must, therefore, visit the consequence of dismissal.

In support they placed reliance on the decisions reported in :---

(1) A.I.R. 1954 S.C. 210, (Jagan Nath v. Jaswant Singh)1.

(2) 1974(4) S.C.C. page 237, (Satya Narain v. Dhuja Ram and others)2.

(3) 1974(4) S.C.C. page 817, (Shri Banwari Das v. Shri Sumer Chand and others)3.

(4) A.I.R. 1978 NOC 182, (Ramanlal Premy v. Shiv Pratap)4.

(5) A.I.R. 1980 S.C. 303, (Sharif-ud-Din v. Adbul Gani)

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1991 Supreme(Bom) 451

Cases Referred (4)