Point of Law: electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. .................. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer.

ORDER :

1. Leave to delete ground 11(E) of the petition.

2. In this petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ, order or direction for quashing and setting aside the impugned order dated 10.12.2020 passed by the respondent No.1 Deputy Collector and Election Officer and further for a direction that the name of the respondent No.3 be deleted from the final Voters’ List of Dhrol Constituency in the election of the Jamnagar District Co-operative Bank.

3. Facts in brief are as under:

3.1 The petitioner is a member of the Managing Committee of Shree Vakiya Group Seva Sahakari Mandli Ltd., a primary co-operative society registered under the Societies Act. Vakiya Group Seva Sahakari Mandli Ltd., is a member society of the Jamnagar District Co-operative Bank, whose elections are scheduled to be held. Vakiya Society is therefore entitled to delegate a member of its society to vote for the elections of the Managing Committee of the Jamnagar District Cooperative Bank, a specified society. The petitioner as a member of the Vakiya Group Seva Sahakari Mandli Ltd., on 14.07.2020, addressed a letter to the Chairman of its society raising a grievance that no meeting of the Society has been called for a period of six months when the elections were announced for the Jamnagar District Bank, wherein, the respondent No.3 was the authorized delegate on behalf of the Vakiya Society to vote, the petitioner lodged an objection with the election officer on 02.12.2020.

3.2 In addition to reiterating his grievance of the society not calling a meeting for a period of six months, he objected to the respondent No.3 being authorized to delegate the Society to vote at the election, on the ground that the respondent No.3 has taken loans from various financial institutions for which an inquiry is under progress, and therefore, he cannot be authorized to vote on behalf of the society and his name therefore be deleted from the voters’ list.

3.3 Reliance was placed on bye-law 39(8) of the bye-laws of the society concerned. By the impugned order, the election officer has rejected the objection of the petitioner on the ground that on the basis of the resolution forwarded by the member society together with the original minute book, it is apparent that the respondent No.3 is authorized by the society.

3.4 As far as the allegation that the respondent No.3 has obtained financial assistance from the HDFC Bank, the election officer opined that it was a term loan for which a No Due Certificate has been produced. The election officer further opined that if in the opinion of the petitioner the respondent No.3 was disqualified in accordance with the byelaw, it was the registrar who would appropriately take a decision. Aggrieved by this communication, the petition is filed.

4. Mr.B.T.Rao, learned advocate appearing for the petitioner, would submit that it is apparent from the revenue records (pages 27,28 and 29) that the petitioner has obtained loan on the basis of mortgaging his lands with the HDFC Bank. The date of the revenue records of 27.07.2020 and the revenue entry recording mortgage of the bank of 29.03.2020 would indicate that on the cut off date and when the provisional voters’ list was prepared on 23.11.2020, the respondent No.3 had obtained loans, and therefore, bye-law 39(8) of the Society would come into play disqualifying the respondent No.3 from being eligible to be a delegate to vote for the Jamnagar District Co-operative Bank.

4.1 Mr.B.T.Rao, learned advocate, would further submit that the order of the Election Officer, though a summary inquiry may be warranted, does not reflect reasons as to on what basis has he arrived at a conclusion that the respondent No.3 had a No Due Certificate when a copy thereof was not even furnished to the objector / petitioner.

4.2 Reliance was placed on Rule 23 of the specified rules, 1982, to submit that it is incumbent for a returning officer to reject the nomination of a candidate who i