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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
V.K. Barde B.B. Vagyani, JJ.
Amar Sinh s/o Shivajirao Pandit ..... Appellant.
Versus
The State of Maharashtra others .... Respondents.
Letter Patent Appeal No. 25 of 1997 in Writ Petition No. 3734 of 1997 with Civil Application No. 4622 of 1997, decided on 30-9-1997.
Advocates appeared :
R.N. Dhorde, holding for N.B. Khandare and K.B. Bhise, for petitioner.
V.D. Sapkal, A.G.P., for respondents Nos. 1 to 4.
D.N. Suryawanshi, for respondent No. 5.
R.B. Raghuwanshi, holding for R.T. Nagargoje, for respondent No. 6.
Section 73-F-Election of Director Board of the Bank Petitioner presented nomination form before the Returning Officer-After scrutiny petitioner was disqualified from contesting the election-Because he was running business of motorcycle known as Vijay Auto Lines Bank had given loan for purchase of motor-cycle such borrowers had purchased motor- cycle from the shop of petitioner-Appeal was filed before Returning Officer and Additional Commissioner, Aurangabad under Section 152-A of the Act-Appeal rejected Petitioner filed writ petition before High Court which was also dismissed in limine-Hence letters patent appeal filed-It cannot be accepted that petitioner is not disqualified under Section 73-F of the Act-The spirit of the section is that a person who is dealing in goods, commodities for which Bank is advancing loans should not be Director or Board-High Court cannot consider such questions of fact mala fide or bona fide under Article 226-Further it was rightly held by High Court that question of rejection of nomination papers can be raised in an election petition-Held, the order passed by Returning Officer does not appear patiently erroneous or without jurisdiction-Civil application does not survive-Letters of Patent Appeal No. 25 of 1997.
Section 73-F-Maharashtra Co-operative Societies Rules, 1961, Rule 5-Maharashtra Co-operative Societies Bye- laws, Bye-law 28(a) Maharashtra Specified Co-operative Societies (Elections to Committee) Rules, 1971, Rule 5-Election to Board of Directors-Disqualification-Petitioner claiming to be delegate of other society-Bye-law providing that only a person who is member of Managing Committee of affiliated society only can be nominated as a delegate to contest election-Held, thus petitioner not being such member is disqualified. The provision regarding delegate is made under Rule 5 of 1971 Rules. The affiliated society of the specified society has to nominate its delegate for the purpose of elections. The committee of the affiliated society has to pass a resolution naming such delegate. It goes without saying that a member of the affiliated society cano only be a delegate of the affiliated society. This position is made further clear by the byelaw No. 28(8) of the Bank which lays down the qualification of Director of the Bank. It reads as follows:
"No person shall be eligible to be candidate for directorship on behalf of affiliated society unless he is a member of the Managing Committee of any affiliated society for at least one year prior to the date of nomination."
It means that a delegate of an affiliated society who desires to contest the election on the Board of Directors from the constituency as described under bye-law No. 28(a) must be a member of the Managing Committee of the affiliated society for at least one year. It, therefore, connotes that he also must be the member of the affiliated society. Then only he can be member of the Managing Committee of the affiliated society and then only in his capacity as delegate if so delegated can contest the election on the Board of Directors.
Section 73-F-Maharashtra Cooperative Societies Rules, 1961, Rule 5 -Maharashtra Co-operative Societies Bye-laws, Bye-law 28(a)-Maharashtra Specified Co-operative Societies (Elections to Committee) Rules, 1971, Rule 5--Nomination papers rejected for being a dealer of goods, society passing loan for purchasing them-Delegate member-If, not qualified-Contention-Disqualification rule is for members of bank only-Petitioner contesting as member of other society -Held-As per bye-laws-Only a member of Managing Committee of other society-Can be nominated as a delegate for contesting election.- The interpretation advanced by the learned counsel for the petitioner to the term no member that member means member of the Bank and not the member of the affiliated society, who happens to be delegate of the affiliated society and contesting the election in that capacity cannot be accepted. The term "no member" used under Section 73-F, therefore, has to be made applicable to the individual members of the Bank as well as the members of the affiliated society who as delegate of the affiliated society wants to contest election for the Board of Directors.
Section 73-F-Maharashtra CO-Operative Societies Rules, 1960, Rule 23(2)-Maharashtra Specified Co-operative Societies-Rejection of nomination-Dealing in goods for which society provides loan-Mala fide-Contention-Returning Officer approach is mala fide-Held-Returning Officer is authorised to scrutinise papers-Otherwise also such questions cannot be raised in writ petition under Article 226.-It also has to be noted that the question of mala fides is a question of fact. The High Court while exercising powers under Article 226 of the Constitution cannot consider such questions of facts. This matter can be well thrashed out in an election petition that can be filed under Section 144-T of the Act. So far as, the circumstances brought on record, no prima facie case for mala fides on the part of the Returning Officer is made out. So, it will not be proper to exercise the powers under Article 226 of the Constitution in this matter.
Section 73-F-Returning Officer has power to reject nomination paper if, he finds objection by any party-Question of mala fide or bona fide is a question of fact-High Court cannot consider such question Order passed by Returning Officer is neither erroneous nor without juris. diction-Court declined to interfere considering all these circumstances, the arguments advanced by the learned counsel for the petitioner cannot be accepted to hold that the petitioner is not disqualified under Section 73-F of the Act. The Returning Officer on the basis of the evidence which was brought before him rightly rejected the nomination paper and, therefore, the appeal under Section 152-A of the Act was also rightly rejected by the Additional Commissioner. The observations made by the Honble Single Judge while dismissing the writ petition, therefore, cannot be disputed.
Sections 73-F, 73-G and 152A-Maharashlra Co-operative Societies Rules, 1961, Rule 10-Election as Director-Disqualification under Section 13-F of Act-Nomination paper of petitioner rejected on ground that he was dealer of goods for which society gave loans-Challenged on plea that neither he took loan from bank nor he is member of bank-Further plea that dealership transferred to his brother-Held, under rules of society if a person is dealer of goods for which society has granted a loan for purchase of that goods, then he is prohibited from contesting election. Moreover, there is no valid transfer of dealership.- The only evidence which was brought before the Returning Officer was that the Bank had sanctioned loan to Shri Muke and that Vijay Auto Lines is a dealer in TVS Suzuki Motor-cycles. The Returning Officer has observed in his order dated 3.9.1997 that Vijay Auto Lines is agency owned by Amarsinh Pandit, the candidate for the election and Vijay Auto Lines deals in the goods for which the Bank grants loans and, therefore, Shri Amarsinh Pandit is disqualified from contesting the election because of the provisions of Section 73-F. It is further observed that the person who has to obtain loan from the Bank has to become nominal member of the Bank and then only the loan is paid and this fact is disclosed from the order sanctioning loan dated 11.12.1996. So it is argued that the Returning Officer has only drawn a presumption that the person who had obtained loan from the Bank had become member of the Bank without there being evidence that he had actually become member of the Bank. The learned Counsel for the petitioner has therefore, contended that as there was no evidence before the Returning Officer that the person had become member of the Bank, the circumstances did not warrant to disqualify the petitioner. However, we do not agree with this argument. The provision of Section 73-F is not such that a member of the Bank must have obtained loan from the Bank and must have purchased the goods from the business of the candidate on the basis of the loan sanctioned by the Bank. The section provides that if the society gives loan to member for purchasing machinery etc., it means that it should be the business or the policy of the society, here the Bank, to gives loans to members for purchasing such goods. It is not necessary that the Bank must have sanctioned loan to members and it is also not necessary that such member must have purchased goods from the shop of the candidate. If the rules of the society make provision that loan can be granted to a member for purchasing such goods, then a person who is dealer in such good is prohibited from contesting the election of the Board of Directors.
Sections 73-G, 73-F and 152A-Disqualification-Due to being a dealer of goods-Society providing loan-Dealership transferred-Effects -Held-Only papers are prepared but, actually their is no transfer-Invalidation of nomination papers correct.- There was also no document before the Returning Officer that the dealership which was originally given to Vijay Auto Lines of which the petitioner was the proprietor was changed by the manufacturer in the name of Vijay Auto Lines of which T was the proprietor. 11 clearly appears that some documents were hurriedly created by giving application in the office of the Municipal Council and Sales Tax Department to change the name of the proprietor but, such change is not real change in the ownership of the business. The date of scrutiny was 2.9.1997 and till that date the business of Vijay Auto Lines was not validly transferred in the name of any other person by the petitioner. So, the entries in Municipal Record under Shops and Establishment Act were not sufficient to hold that the business, Vijay Auto Lines was not owned by the petitioner when already there was other evidence indicating that the business was owned by the petitioner. So, the evidence which was brought before the Returning Officer by the petitioner was not sufficient to overrule the objection raised by respondent ND. 5.
Sections 73-G, 73-F and 152A-Maharashtra Co-operative Societies Rules, 1961, Rule 10-Nomination papers for-Election as Director-Rejected Ground-Petitioner dealing the item for which Bank has granted a loan-Contention-Petitioner neither a loanee nor a member of Bank Held-A person who deals with items for which society has made a provision for loan, cannot contest election of Board of Directors.- The provision of Section 73-F is not such that a member of the Bank have obtained loan from the Bank and must have purchased the goods from the business of the candidates on the basis of the loan sanctioned by the Bank. The section provides that it, the society gives loan to member for purchasing machinery, etc. it means that it should be the business Dr the policy of the society, here the Bank, to give loans to members for purchasing such goods. It is not necessary that the Bank must have sanctioned loan to members and it is also not necessary that such member must have purchased goods from the shop of the candidate, it, the rules of the society make provision that loan can be granted to a member for purchasing such goods, then a person who is dealer in such good is prohibited from contesting the election of the Board of Directors.
Maharashtra Co-operative Societies Rules, 1961
Rule 5--See Maharashtra Cooperative Societies Act, 1960, Section 73-F.
Rule 10-See Maharashtra Co-operative Societies Act, 19601 Sections 73-G, 73-F and 152-A.
Rule 23(2)-See Maharashtra Co-operative Societies Act, 1960, Section 73-F.
Maharashtra Co-operative Societies Bye-Laws
Bye-Law 28(a)-See Maharashtra Co-operative Societies Act, 1960, Section 73-F.
Maharashtra Specitied Co-operative Societies (Election Committee) Rules. 1971
Rule 5-See Maharashtra Co-operative Societies Act, 1960, Section 73-F.
2. This Letters Patent appeal is arising because of dismissal of Writ Petition No. 3734/1997 in limine by the Hon'ble Single Judge of this Court. The facts giving rise to this litigation in brief are as follows :-
3. The respondent No. 5-Beed District Central Co-operative Bank (hereinafter referred to as the Bank) is the Cooperative Society and is a specified society under section 73-G of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act). The programme for the election of the director board of the Bank is published by the respondent No. 2-Collector and the respondent No. 3 is appointed as the Returning Officer. The present petitioner is the delegate of the affiliated Co-operative Society of the Bank, namely, Seva Sahakari Society, Rakshas Bhuvan, for the purpose of the election to the director board. As per the bye-laws of the Bank, a delegate nominated by the affiliated society can contest the election and, therefore, the petitioner presented his nomination form before the Returning Officer. The scrutiny of the nomination papers was held on 2-9-1997. The respondent No. 6 raised objection to the nomination of the writ petitioner contending that the petitioner was disqualified from contesting the election as per the provisions of section 73-F of the Act. It was contended that the petitioner was running the business of sale of motor cycles known as Vijay Auto Lines at Beed and was dealer for TVS Suzuki Motor Cycles. The Bank had given loans for purchase of motor-cycles and such borrowers had purchased motor-cycles from the shop of the petitioner. So he was not eligible to contest the election. On receiving this objection, the Returning Officer served notice on the petitioner and called upon him to file his say alongwith his evidence to rebut the objection on 3-9-1997. The petitioner filed his written say and after hearing both the sides, the Returning Officer upheld the objection and rejected the nomination paper of the petitioner.
4. Being aggrieved by the said decision, the petitioner filed appeal before the Additional Commissioner, Aurangabad Division, as per the provisions of section 152-A of the Act. The learned Additional Commissioner after hearing both the sides rejected the appeal as per his order dated 12.9.1997.
5. Petitioner thereafter filed Writ Petition No. 3734/1997 in this Court. The petitioner raised various points to challenge the order passed by the Returning Officer and the decision given by the Additional Commissioner. It is the contention of the petitioner that the provisions of section 73-F of the Act are not attracted. As per the provisions of the Act and the Rules under the Act, the function and object of the Bank is to provide loans to member societies. The Bank cannot provide loan to the individual members. The list of the persons to whom loans were given by the Bank was filed by the respondent No. 6 before the Returning Officer, but those persons were not members of the Bank and they were employees of the Bank. So even if loan is given by the Bank to any of its employees and if such employee has purchased vehicle from the petitioner, the provisions of section 73-F are not attracted because such person was not member of the Bank.
6. It is also contended that the Director Board of the Bank had passed a resolution No. 7(1) and as per that resolution, loans were sanctioned to the employees of the Bank and not to the member of the Bank. The petitioner had produced a certificate issued by the Inspector, Shops and Establishment, Beed, showing that the petitioner was not owner of the said establishment and in such circumstances, the petitioner cannot be disqualified. He has also contended that the petitioner is not owner of the establishment - Vijay Auto Lines.
7. It is further contended by the petitioner that the Returning Officer suo motu
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