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IN THE HIGH COURT OF BOMBAY, PANAJI BENCH
M.S. Sonak, J.
Madhav Atmaram Sahakari - Petitioner
Versus
Aselmo Furtado Son of Exaltacao Furtado and Ors. - Respondents
Writ Petition No. 366 of 2017
Decided On : 02-05-2017
Election Dispute - Goa Co-operative Societies Act, 2001 - Section 83(1) - Summary of Acts and Sections: Goa Co-operative Societies Act, 2001 - Section 83(1), Rule 69(4) of the Goa Co-operative Rules - The court discussed the provisions of Section 83(1) of the Goa Co-operative Societies Act, 2001, which provides for the referral of disputes touching the election to the Board of Directors or the office bearers of the society to the Co-operative Tribunal within a period of 30 days from the date of declaration of the result of the election. The court also highlighted Rule 69(4) of the Goa Co-operative Rules, which states that the Returning Officer shall not reject any nomination papers on the ground of any defect which is not of substantial character.
Fact of the Case:
The petitioners challenged the judgment and order dated 7.4.2017 made by the Co-operative Tribunal in Co-operative Appeal No.5/2017, which set aside the Returning Officer's order dated 18.1.2017 and the results of the election to the Milk Union dated 20.1.2017 and directed authorities to conduct election in accordance with law as expeditiously as possible. The petitioners contended that the appeal instituted by the respondent nos. 1 to 24 was incompetent and time-barred, and that the Co-operative Tribunal lacked jurisdiction to entertain the dispute. They also argued that the respondent nos. 1 to 24 failed to implead necessary parties and that the rejection of the nomination papers of the respondent nos. 1 to 24 by the Returning Officer was justified.
Finding of the Court:
The court found that the Co-operative Tribunal had jurisdiction to entertain the dispute, as the respondent nos. 1 to 24 had sufficient cause for not referring the dispute within the prescribed period. The court also held that the objection based on non-joinder of necessary parties was without merit, as all the necessary parties were duly impleaded before the Co-operative Tribunal. Additionally, the court determined that the rejection of the nomination papers of the respondent nos. 1 to 24 by the Returning Officer was not justified, as the defect was not of a substantial character.
Issues: The issues before the court included the competency and timeliness of the appeal, the jurisdiction of the Co-operative Tribunal, the non-joinder of necessary parties, and the justification for the rejection of the nomination papers of the respondent nos. 1 to 24 by the Returning Officer.
Ratio Decidendi: The court held that the Co-operative Tribunal had jurisdiction to entertain the dispute, as the respondent nos. 1 to 24 had sufficient cause for not referring the dispute within the prescribed period. The court also found that the objection based on non-joinder of necessary parties was without merit, as all the necessary parties were duly impleaded before the Co-operative Tribunal. Additionally, the court determined that the rejection of the nomination papers of the respondent nos. 1 to 24 by the Returning Officer was not justified, as the defect was not of a substantial character.
Final Decision: The petition was dismissed, and the rule was discharged. There was no order as to costs.
M.S. Sonak, J.
Heard Mr. A.D. Bhobe, learned Counsel for the petitioners, Mr. A. Kakodkar, learned Counsel for the respondent nos.1 to 24, Mr. D. Shirodkar, learned Addl. Govt. Advocate for the respondent no.25, Mr. V. Rodrigues, learned Counsel for the respondent no.27 and Mr. I. Agha, learned Counsel for the respondent nos.29 and 38.
2. Rule. With the consent of the and at the request of the learned Counsel for the parties, Rule is made returnable forthwith.
3. The petitioners challenge the judgment and order dated 7.4.2017 made by the Co-operative Tribunal in Co-operative Appeal No.5/2017 allowing the appeal instituted by the respondent nos.1 to 24 against rejection of their nomination papers for election to the Board of Directors of the Goa State Co-operative Milk Producers Union Ltd, ("Milk Union " for short). The operative portion of the order reads thus:-
"Appeal is partly allowed.
The impugned order dated 18.1.2017 and Form-Election 9 dated 20.01.2017 are quashed and set aside.
The Respondent nos.1 and 2 are directed to accept the nomination papers of the Appellants and conduct elections in accordance with law on any convenient day as expeditiously as possible."
4. Brief facts and circumstances in which such challenge arises are set out hereunder:-
(a). Milk Union is a federal society, comprising inter alia, several Cooperative Societies as its members. Its establishment and functioning is governed by Goa Co-operative Societies Act, 2001("said Act) According to its bye-laws, Board of Directors is to compromise 12 directors. Only the Chairman of all the member societies is eligible to contest the position of the directors of the Milk Union.
(b). Elections to the Milk Union were scheduled for 29.1.2017 and the respondent no.26 was appointed as the Retuning Officer.
(c). On the date of scrutiny of the nominations papers, the petitioners, raised objection to the nomination papers of the respondent nos.1 to 24 on the ground that resolution of the society authorising the said respondents to represent them was not accompanied by a declaration that no other members is representing society on the Board. It was submitted that this is a requirement as per bye-law 20.1.2 and in the absence of such declaration, nomination papers are invalid and liable to be rejected.
(d). The Returning Officer i.e respondent no.26 by its order dated 18.1.2017 upheld the objection raised by the petitioners and rejected the nomination papers of the respondent nos.1 to 24. Only 15 nomination papers out of total 41 which include 12 nomination papers filed by the petitioners were found to be valid. Out of the 15, 3 chairmen withdrew from the fray and 12 petitioners were declared as elected as unopposed to the Board of Directors of the Milk Union.
(e). The respondent no. 26 issued Form-Election 9 dated 20.1.2017, declaring that result of the election to the Board of Directors of the Milk Union.
(f). On 23.1.2017, the respondent nos. 1 to 24 instituted Writ Petition No.112/2017 questioning Retuning Officer order dated 18.1.2017 and consequent result of the election declared on 20.1.2017.
(g). The Division Bench of this Court by its judgment and order dated 2.3.2017 disposed of Writ Petition by granting liberty to the respondent nos.1 to 24 to avail the alternate remedy within one week before appropriate Tribunal/Authority. The interim order restraining further action, in pursuance of declaration of result was continued for a period of four weeks.
(h). The operative portion of judgment and order dated 2.3.2017, as contained in paragraph 8 to 11 reads thus:-
"8. We have heard accordingly. Therefore, taking overall view of the matter, without expressing anything on merits of the issue so raised, we are not entertaining the present writ petition as the petitioners have an alternate remedy available under the concerned Statute.
9. By keeping all points open, liberty is granted to the petitioners to invoke appropriate remedy by filing petition/appeal within one week b
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