2001 Supreme(Guj) 572

Gujarat High Court
Judgename :K.M.MEHTA
BHIKHABHAI KESHAVLAL PATEL - Appellant
Versus
ELECTION OFFICER,district CENTRAL CO OPERATIVE BANK LIMITED and DEPUTY COLLECTOR - Respondent
S.C.A. 6025 of 2001
Decided On : 08/09/2001

Headnote:(a) Gujarat Co-operative Societies Act, 1961 (Guj Act 10 of 1962) - Chapters XI-A, Secs. 23, 74-C, 145-F, 145-U, 147 & 149 - Gujarat Specified Co-operative Societies Elections to Committees Rules, 1982 - Rules 5, 18, 19, 21 & 23 - Gujarat Co-operative Societies Rules, 1965 - Rules 24, 24-A & 32 - Rejection of nomination form of petitioner for election of Director of Bank by Election Officer - Petitioner contesting candidate - Sitting Director/member of Management Committee of respondent Co-operative bank - Held, before a candidate is disqualified to be continued as a member of society, order has to be passed by Registrar, Co-operative Societies after giving opportunity of being heard - There must be order of disqualification under Sec. 145-F - As per Sec. 147, order has to be passed by Registrar - If there is allegation under Rule 24-A of Rules of 1965 that petitioner obtained loans from two societies, there must be written requisition from Registrar - Thereafter order must be passed under Rule 24-A of Rules of 1965 - Violation of Rule 32 of Rules of 1965, Rule 23 of Rules of 1982 - Returning Officer not using proper discretion and not properly conducting summary inquiry while rejecting nomination paper of petitioner on the ground of disqualification - Impugned order of District Registrar rejecting nomination - Not sustainable - Impugned order of Returning Officer also patently illegal and without jurisdiction - Interference of High Court called for - Order passed by Election Officer set aside.

       As per Sec. 23 of the Act, before a person can be disqualified to be continued as a member of the society, there must be an order passed by the Registrar after giving an opportunity of being heard. In this case, that fact has not been established. Section 145-F of the Act is concerned, it provides disqualification for membership. The Clause (e) of Sec. 145-F(1) provides that if he is also disqualified by or under any other provisions of this Act, viz. which contemplates that there must be an order of disqualification. Section 147(1)(a) provides when an offence will be committed under the Act. It also provides that action under Sec. 23 of the Act which he knows or has reason to believe to be false. In Courts view, as per Sec. 147(1))(a) of the Act there must be also an order passed by the Registrar in this behalf.

       [Para 4]

       Rule 24-A of the Rules 1965 provides restrictions on borrowing from more than one credit society. From the record of the case though there is allegation that the petitioner has obtained loan from two societies, there must be written requisition from the Registrar to that effect and thereafter order must be passed under Rule 24-A of Rules 1965. Rules 32 of the Rules 1965 provides qualification for the members of the committe. Rule 23 of the Rules 1982 gives power to the Returning Officer to examine the nomination papers and shall decide all objections which may be to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on the ground that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or bye-laws. Here the order of disqualification must be published before the Returning Officer exercises his jurisdiction.

       [Para 4.1]

       In view of the provisions of the Act, the order passed by the District Registrar at Annexure-A dated 24.7.2001 rejecting the nomination of the petitioner cannot be sustained in the eye of law because the condition precedent for exercising the power under Rule 23 does not exist in this behalf.

       [Para 4.2]

       In view of the judgment of this Court in Special Civil Application No. 5040 of 1999 the impugned decision of the Returning Officer must be held to be patently illegal and without jurisdiction. The illegality is so apparent on the face of the record that rejecting the petition at this stage and requiring the petitioner-society to file an election petition after the elections are over would not only be a travesty of justice but also frustrate the letter and spirit of the democratic process. The very object of the self imposed rule that the Courts shall not interfere with the election process when the election process has commenced is to ensure that the election process goes on. When the Returning Officer himself commits a patent illegality and rejects the nomination paper of the petitioner contrary to the statutory provisions or in any view of the matter condition precedent for exercising the power is lacking then the same is done without any power or jurisdiction. In Courts view the condition precedent for exercising the power under the provisions of the Act and Rules are lacking and, therefore, there is inherent lacking of jurisdiction in the order of respondent No. 1. This must be held to be one of the exceptional and extraordinary circumstances justifying the interference of this Court with the impugned decision of the Returning Officer.

       [Para 4.3]

       (b) Constitution of India, 1950 - Art. 226 - Alternative remedy - Maintainability of writ petition - Alternative remedy by way of election petition is available only after election is over - In the present matter, election being not over, alternative efficacious remedy not available - Hence, present writ petition maintainable, because authority passed order contrary to statutory provisions or ultra vires - Respondent No. 1 directed to accept nomination form of petitioner and to allow him to contest election.

       Election petition can be filed only after the election is over. In this case the election is not over. Therefore, alternative, efficacious remedy provided under the law is not available to the petitioner at this stage.

       [Para 4.6]

       The remedy provided under the Act by way of filing election petition cannot be said to be alternative, adequate and efficacious remedy when the authority has passed order contrary to the statutory provisions or ultra vires the provisions of the Act. This Court has jurisdiction to exercise writ jurisdiction under Art. 226 of the Constitution of India. Therefore, the order passed by the District Registrar is liable to be quashed and set aside.

       [Para 4.7]

       In the result the petition is allowed. The order dated 24.7.2001 passed by the Election Officer is quashed and set aside. Court direct the respondent No. 1 accept the nomination form and allow the petitioner to contest the election. It will be open for the Election Officer to change the date of election in this behalf.

       [Para 4.8]