Back
1997 Supreme(Bom) 235
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.P. Shah B.H. Marlapalle, JJ.
Sambhaji S/o Ramji Patil Umrekar ..... Appellant.
Versus
District Supply Officer others ......Respondents.
Letters Patent Appeal No. 16 of 1997 in Writ Petition No. 1796 of 1997, decided on 7-5-1997.
Advocates appeared :
R.N. Dhorde, for S.V. Kharde Patil, for the appellant.
R.M. Borde, for respondent No. 2.
A.M. Kanade, G.P. for respondent State.
Headnote:Order XXXIX, Rules 1 and 2, Order XLIII, Rule 1-See-Maharashtra Co-operative Societies Act, 1960, Section 77-FF(c) and 78(1)(a), (b).
Sections 77-FF(c) and 78(1)(a),(b)-Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2; Order XLIII, Rule I-Letters Patent (Born), Clause IS-A member of dissolved Managing Committee-Seeking election-Not allowed a contention that he was a member of dissolved Committee-Already suspended under Section 78(1)(a)-Single Judge not allowed stay-Appeal against order-Contention-Appeal being letters patent appeal not allowable-Held-If, petition is admitted it has to be considered under pause 15 of the Letters Patent.-A Full Bench of this Court in the case of S. Laxminarayan Mudliyar and others v. N. W Shah and others, 1998 Mh LJ 695, has inter alia, held that the correct approach would be to consider not only the contents of the petition and the nature of the reliefs prayed for but, also to examine the substance of the judgment passed by the learned Single Judge and the relief in order to determine whether the appeal under clause 15 of the Letters Patent lies.
Sections 78(1)(a), Proviso and 73-FF(iv)-Managing Committee suppressed-If, individual members also get disqualified-Their nomination papers challenged-Filed for election in Co-op. Society-Ground-They as members of Committee are also disqualified-Challenged-Contention-Individually the members are not disqualified-Held-Provisions under Section 78(1)(b) dealing with penalty do not apply to Committee but, to individuals only.- The learned counsel for the respondent No.2 has supported the order rejecting the nomination form only on the basis of the proviso to Section 78(1)(b) of the Maharashtra Cooperative Societies Act. He has further contended that interim order passed on 23.12.1996 in Writ Petition No. 5720 of 1996 and continued in LPA No.6 of 1997 amounts to individual disqualification of the present appellant. Admittedly, the present appellant has not been removed under Section 78(1)(b) of the Maharashtra Co-operative Societies Act and instead the entire body of the Managing Committee has been removed by invoking the powers under Section 78(1)(a) of the said Act. In addition, the petitioner has not been disqualified under Section 73-FF of the Maharashtra Co-operative Societies Act. The Returning Officer while rejecting the nomination form of the appellant has relied upon the provisions of Section 73FF(iv) which means that the nomination form of the appellant has been rejected on the ground that he has incurred disqualification under the said Act. It appears that the Returning Officer has held that the appellant has incurred disqualifications as the entire Board of Directors has been removed under Section 78(1)(b) of the Act. The said ground in support of the order rejecting the nomination form is totally baseless as there is no disqualification from contesting elections to any other co-operative societies in the provisions of Section 78(1)(b). However, the proviso to Section 78(1)(b) in 1997 provides that any member who had been removed under Section 78(1)(b) shall not be eligible to be re-elected, reappointed, re-nominated or co-opted as a member of any Committee till the expiry of the period of next one full terms of the Committee from the date on which he has been so removed or till such lesser period as may be laid down under the provisions of Section 73-FFF or 144-E, as the case may be. In the instant case, no order under Section 78(1)(b) has been passed against the present appellant. Even otherwise, this Court in the case of, Bhujangrao Narayanrao Desmukh v. State of Maharashtra and others, reported in 1995 (1) Mh LJ 437, and in the case of, Gurunath Madhavrao Jamalpura v. Zilla Parishad Teachers Co-operative Credit Society Ltd., Udgir and others, reported in 1996 (3) Bom CR 124 : 1996 (1) Mah LJ 409, had the occasion to interpret the provisions of Section 78(1)(b) as well as its proviso. This Court held that the proviso is penal in nature and it has to be construed strictly and, therefore, unless the words of the statute are clear, the Court cannot bring more persons under the umbrella of this provision that is intended by the Legislature. It was further held that the proviso speaks about the single member and not of the entire Committee.
Sections 78(1)(a), 73-FF(4) and 152-A-Appellant was Chairman Kalambar Vibhag Sahakari Karkhana Limited, Loha (Nanded) order issued superseded the Board-Order challenged-Appellate authority rejected the appeal-Writ petition filed-Court directed to consult members-By another order writ petition rejected -By interim order Writ Petition No. 5720 of 1996 continued-Election for District Co- operative Bank Nanded declared-Appellant filed nomination-His nomination rejected on the ground of disqualification under Section 73-FF(4) of the Act-Appellant filed writ petition-High Court granted rule and directed that election would be subject to result the writ petition-Appellant filing letters patent appeal-The action of respondent Nos. 1 and 3 smack of mala fides-Impugned orders or contrary to law-Letter of patent appeal allowed-Returning Officer was directed to accept the nomination papers of petitioner.
Sections 78(1)(b), Proviso and 73-FF(iv)-Applicability of proviso to Section 78(1)(b) of Act-Super-session of Committee-Election-Rejection of nomination paper-Whether individual disqualified for filing nomination paper after super-session-Held, no as super-session of entire body does not amount to disqualification of individual members-Under Section 73-FF(iv) only individuals disqualification concerned and not of commit. tee as a whole-Thus proviso to Section 78(1)(b) not applicable.
2. Admit. With the consent of the parties, the appeal is being decided at the admission stage.
3. Few facts which are necessary to decide the appeal are as under. The appellant was Chairman of Kalambar Vibhag Sahakari Sakhar Karkhana Limited, Loha, District Nanded between the period 1986 to 1996. The respondent No. 2 is elected as M.L.A. from Loha Assembly Constituency. On 28-8-1996, the Regional Joint Director of Sugar issued an order under section 78(1)(a) of the Maharashtra Co-operative Societies Act, 1960 superseding the entire Board of Directors of Kalambar Vibhag Sahakari Sakhar Karkhana Limited, of which the petitioner was the Chairman. The petitioner - appellant challenged the said order before the Appellate Authority who was pleased to reject the appeal and the Order dated 28-8-1996 came to be confirmed. In Writ Petition No. 5720 of 1996 filed by the appellant interim order came to be passed on 23-12-1996 directing the Regional Joint Director to consult all the members of the Board of Directors except the appellant who had completed more than ten years as a Chairman. However, by further order dated 21st January, 1997, the Writ Petition No. 5720 of 1996 came to be rejected by the learned Single Judge of this Court. The appellant, therefore, filed Letters Patent Appeal No. 16 of 1997 and by order dated 6-2-1997, the interim order passed by the learned Single Judge on 23-12-1996 in Writ Petition No. 5720 of 1996 was continued. On 15-4-1997 the Collector at Nanded declared the elections for the Nanded District Central Co-operative Bank Ltd. and the appellant as well as respondent No. 2 filed their nomination forms in time from the same constituency. On 22-4-1997, at the time of scrutiny, the nomination form of the appellant came to be rejected by Respondent No. 1 on the ground that an order under section 78(1)(a) of the Maharashtra Co-operative Societies Act has been passed against him and he is disqualified under section 73-FF(4) of the said Act. The appellant alleges that this order was passed by respondent No. 1, at the instance of respondent No. 2. The said order dated 22-4-1997 rejecting the nomination form came to be challenged by the present appellant under section 152-A of the Maharashtra Co-operative Societies Act, 1960 before the Divisional Commissioner, who by his Order dated 30-4-1997 held that though the nomination of the appellant is wrongly rejected by the respondent No. 1, in view of the order dated 23-12-1996 passed by this Court in Writ Petition No. 5720 of 1996, the order of rejection of nomination paper was proper. The appellant therefore, filed Writ Petition No. 1796 of 1997 and the learned Single Judge of this Court by his order dated 6-5-1997 granted Rule, returnable on 17-6-1997 and directed that the election would be subject to the result of the petition. Being aggrieved by the order of the learned Single Judge, the appellant/petitioner has filed the present Letters Patent Appeal.
4. It is not in dispute that by order dated 28-8-1996 passed by the Joint Regional Director (Sugar), Nanded and Assistant Registrar, Co-operative Societies, Nanded, the entire Board of Directors of the Kalambar Vibhag Sahakari Sakhar Karkhana Limited, has been dissolved under section 78(1)(a) of the Maharashtra Co-operative Societies Act, 1960 and by invoking the powers under section 78(1)(a)(i) and (ii) of the said Act, the Deputy Director of Sugar, Nanded came to be appointed as an Administrator of the Kalambar Vibhag Sahakari Sakhar Karkhana Limited. The Appellate Authority has confirmed the order on 3-12-1996 and Writ Petition No. 5720 of 1996 filed by the appellant came to be rejected by the learned Single Judge. Letters Patent
