Bhaulal s/o. Rajdhar Sonavane vs Returning Officer and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(Bom) 44

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker, J.
Bhaulal s/o. Rajdhar Sonavane.... Petitioner.
Versus
The Returning Officer and others.... Respondents.
Writ Petition Nos. 3992, 3993, 3994 3995 of 1993, decided on 25-1-1994.
Advocates appeared :
V.J. Dixit, for the petitioner in W.P. Nos. 3992, 3993, 3994 3995 of 1993.
E.P. Sawant, A.G.P., for respondent Nos. 1 to 3 in W.P. Nos. 3993 3995 of 1993.
A.G. Godhamgaonkar, for respondent No. 4 in W.P. Nos. 3992, 3993, 3994 3995 of 1993..
S.V. Chandole, for respondent No. 5 in W.P. No. 3992 of 1993, respondent No. 6 in W.P. 3993 3995
of 1993 respondent No. 11 in W.P. No. of 1993.
H.A. Patil, A.S.P., for respondent Nos. 1 to 3 in W.P. No. 3993, 3994 of 1993.

Headnote:Sections 2 (27), 73-FF & 78-Disqualification for election.
       There being distinction members about to be elected and those already elected. Elected members dealt with under Section 78-Material date for consideration of disqualification on ground of being defaulters in repayment of loans. Held, there is no disqualification if default does not exist on last date of filing of nomination.
       Sections 2 (27), 73-FF and 78- Members-Position of who about to be elected -Elected members separately dealt with under Section 78.
       Held, it is true that Section 73-FF deals with the default made by a primary member as well as member of the committee of the society. It is also true that Section 73-FFF provides that the defaulter member shall not be re-appointed, re-nominated or re-elected as a member of committee for two years. However, there is no basis to assume that primary members of the Society want to get themselves elected, nominated or appointed and the members who have been already elected as a member of the committee and are in office have been treated alike by the legislature while making default under the Maharashtra Co-operative Societies Act, 1960 Members who are in office is a separate class and they can separately be dealt if some body is already entrusted with the management of the society, he is expected to obey the rules of the Society and if he commits a default in it, punishment of removal is provided and he is debarred from being again appointed or elreted to the said post for a period of two years. Legislature has not provided that if default is once committee stigma shall continue for a specified period It has not been provided that a stigma would last for a particular period irrespective of the fact that the concerned member wants to make payment of amounts and has actually paid defaulted money. The principle underlying the disqualification so far as the election law is concerned is that he should not be a defaulter on the last day of the nomination. There is nothing in Section 73-FF or any of the provisions of the Maharashtra Co-operative Societies Act, 1960, to interpret that a default once committed will disentitle the primary member to be elected or nominated, co-opted or appointed, as the case may be, as member of the managing committee of any time in future. There is no provision to disqualify him even for the next election due if he has paid amount defaulted. Any penal provision, however reasonable it may appear, cannot be added to the statute when actually is none. Penal provisions are to be interpreted strictly and should be confined to the class and circumstances which have been laid down in the provision.

JUDGMENT -N.P. CHAPALGAONKER, J.:-These four writ petitions raise a common question of law in the set of identical facts and are, therefore, being disposed of by this common judgment. Election to Uttarane Vividh Karyakari Seva Sahakari Sanstha Maryadit, a Co-operative Society within the meaning of section 2(27) of the Maharashtra Co-operative Societies Act, 1960 were scheduled on 26th December, 1993. Nomination papers of these four petitioners came to be rejected on the ground that they are defaulters not having repaid crop loan on the due date. It is the case of all the petitioners that though they did not repay the crop loan on the due date, they have paid it subsequently and on the date of the nomination, they were not in arrears about crop loan of the Society in question. The question is whether a default once committed by a primary member of the Co-operative Society would disentitle him to contest the election even if he has repaid the amount defaulted before he files the nomination.

2. Shri V.J. Dixit, learned Counsel appearing for petitioner, contended that the language of sub-section (1) of section 73-FF makes it clear that the question whether one is defaulter or not will have to be considered at the time when he is being appointed, nominated or elected, as the case may be. Therefore, if a person is not a defaulter when he is being elected, nominated or appointed, then he is not disqualified from being elected, nominated or appointed as a member of the committee. According to Shri Dixit, if the amount of default is already paid before filing nomination, legislature has not provided for continuance of stigma of disqualification and no nomination paper can be rejected on this count. Shri A.G. Godhamgaonkar, learned Counsel appearing on behalf of the Society, submitted that sub-section (1) of section 73-FF provides and defines the term defaulter not only for the purposes of being nominated or elected but also for the purposes of being member of the committee of the Society. Therefore, a person who is already member of committee of Society and a person who seeks to be member of committee of Society have been equated by the legislature and the default will have to be interpreted in similar way. Shri Godhamgaonkar further points out that section 73-FFF provides for a specific period to keep a defaulter away from the affairs of the Society and the same period should have been read in respect of a person who is aspires to be a member of the Committee of the Society. Shri Godhamgaonkar contends that if the legislature wanted that the defaulter should not be allowed to be associated with the management of the Co-operative Society, it makes on difference whether he was elected or whether he intends to offer himself for the membership of the Society. Shri Godhamgaonkar submits that the two years period prescribed under section 73-FFF should also be read in section 73-FF since both these sections along with section 73-F constitute composite code proceeding for the default. Lastly he submits that, at least, for the election immediately taking place after the default is committed or taking place in the co-operative year in which default is committed, the default should result in disqualification of the candidate irrespective of the fact that he has paid amount after the due date but before the date of the filing of the nomination. Shri S.V. Chandole, learned Counsel appearing on behalf of other contestants in the fray, supported the arguments advanced by Shri Godhamgaonkar and added that the question whether petitioners are defaulters or not, is a question of fact and since no material is available before this Court, this Court should not interfere into the findings of facts recorded by both the authorities below in exercise of its powers of superintendence under Article 227 of the Constitution of India. Shri E.P. Sawant, learned Assistant Government Pleader appearing for State, supported the orders of the Returning Officer.

3. It is

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