Point of Law: Returning Officer was required only to notice that on the dates of nomination and election in view of the order of conviction, whether the respondent No.5 was disqualified. The question whether subsequently the conviction or sentence was suspended or the ramifications and interpretations were of no relevance, when viewed in context of section 145F(1)(c) and bye-law 30(ix)(c).

JUDGMENT :

1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ of mandamus or any other writ, order or direction for quashing and setting aside the order dated 23.12.2020 passed by the Returning Officer, Jamnagar District Cooperative Bank Ltd. By the aforesaid order, the objections raised by the petitioner requesting the Returning Officer to hold and declare that the respondent No.5 is not eligible and qualified to contest the election was turned down.

2. The facts in brief are as under:

The Jamnagar District Cooperative Bank Limited ('the Bank' for short) is a cooperative society and “a specified society” u/s. 74(C) of the Gujarat Cooperative Societies Act. The election to the Bank which is a specified society u/s. 74(C) of the Act was due. Accordingly, a preliminary voters list was published on 23.11.2020 under Rules 4 and 6 of the Gujarat Specified Cooperative Societies (Election to Committees), Rules, 1982 (hereinafter referred to as the `Rules of 1982'). An election programme was published on 4.12.2020, nomination papers had to be filed between 14.12.2020 and 19.12.2020 and the elections for the Bank were scheduled to be held on 13.1.2021. The petitioner had filled in form to contest the election from the Dhrol Constituency. Even the respondent No.5 filled in such form from the same constituency. The respondent No.5 figured in the list of candidates from the Dhrol Constituency.

On 20.12.2020, the petitioner filed objections to the candidature and the nomination of the respondent No.5 for contesting the election. The objection inter alia was that the respondent No.5 had been convicted by the Principal Civil Judge and JMFC, Dhrol in Criminal Case No.128/2008 for offences punishable u/s.143, 147, 353, 452 of the IPC read with sec.3(A) of the Prevention of Damage to the Public Property Act, 1984. By a judgment and order dated 13.10.2020, the respondent No.5 was sentenced to undergo imprisonment for two years and six months and was imposed a penalty. According to the petitioner, therefore, in terms of bye-law 30(ix)(c) of the Bye-laws of the respondent - Jamnagar District Cooperative Bank Limited, the respondent No.5 was not eligible and qualified to contest the election. Written submissions were also filed on 23.12.2020 contending that in view of the conviction of the respondent No.5 by the judicial magistrate on 13.10.2020 and even when an appeal was filed against the conviction, the conviction was not stayed by the appellate court i.e. 3rd Addl. Sessions Judge and what was only suspended was the sentence the respondent no.5 was not qualified to contest. Based on the objection and the written submissions so filed, the case of the petitioner was that the respondent No.5 had incurred disqualification to contest the election in terms of the bye-law and, therefore, his nomination should be rejected.

By the impugned order dated 23.12.2020, the Returning Officer rejected the objections of the petitioner, paving the way for the respondent No.5 to contest election to the Managing Committee of the Bank. Hence, the petition.

3. Mr.P.K. Jani, learned senior counsel has appeared with Mr.Viral K. Shah, learned advocate for the petitioner through Video Conferencing. He made the following submissions:

Mr.Jani invited the attention of the Court to the bye laws of the Jamnagar District Cooperative Bank Limited, reproduced in the petition at Page 12 and submitted that as per the bye laws, no member shall be eligible for being elected for the board of directors if he has been convicted of a criminal offence or offence involving moral turpitude. Inviting the attention to the operative portion of the order of the Judicial Magistrate, dated 13.10.2020, Mr.Jani would submit that the respondent was convicted of the offences under the relevant provisions of the IPC read with the Prevention of Damage to the Public Property Act. The conviction and sentence was for a period of six months for various offe