Gujarat High Court
Kanubhai Manibhai Patel vs State Of Gujarat & 4 on 13 October, 2014
Bench: M.R. Shah, R.D.Kothari
C/SCA/14199/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14199 of 2014
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
=============================================
1. Whether Reporters of Local Papers may be allowed to see
the judgment ?
2. To be referred to the Reporter or not ?
3. Whether their Lordships wish to see the fair copy of the
judgment ?
4. Whether this case involves a substantial question of law as to
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil judge ?
=============================================
KANUBHAI MANIBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
=============================================
Appearance:
MR DHAVAL DAVE, SR. ADVOCATE with MR NARENDRA L JAIN, ADVOCATE for Petitioner
MR DHAWAN JAYSWAL, ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 1
MR ASHISH H SHAH, ADVOCATE for the Respondent(s) No. 4
MR. S N THAKKAR, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1 3
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 13/10/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) RULE. Shri Dhawan Jayswal, learned AGP waives service of notice of Rule on behalf of respondent No.1 and Shri Satyen Thakkar, learned advocate waives service of notice of Rule on behalf of respondent No.5.
Page 1 of 26 C/SCA/14199/2014 CAV JUDGMENTIn the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of respective parties, present petition is taken up for final hearing today.
[1.0] By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 30.09.2014 passed by the respondent No.3 - Deputy Collector and Election Officer, Sabarkantha District Central Cooperative Bank Ltd. [hereinafter referred to as "Specified Society"] in accepting the nomination of the respondent No.5 for the Director of the specified society - bank.
[2.0] Facts leading to the present Special Civil Application in nutshell are as under:
[2.1] That the respondent No.4 Bank is a specified society, specified under the 74C of the Gujarat Cooperative Societies Act, 1961 [hereinafter referred to as "Act"]. That vide notification dated 18.09.2014, the respondent No.3 - Deputy Collector & Election Officer has declared the election programme for the election of the Directors of the Specified Society. That the election of the Specified Society is required to be conducted as per the provisions of the Gujarat Specified Cooperative Societies Election to Committee Rules, 1982 [hereinafter referred to as "Rules"] framed under the provisions of the Act. That section 145F of the Act provides for disqualification to become the member/Director of the Specified Society. That the respondent No.5 is a primary society affiliated to the aforesaid Specified Society. That as per the provisions of the Act and the Rules, a Primary Society can nominate the name of its delegate for and on behalf of the primary society after passing the necessary resolution to become the voter and thereafter as its delegate, however subject to change the name of the delegate as provided under subRule (5) of Rule 5 of the Rules. It appears that Page 2 of 26 C/SCA/14199/2014 CAV JUDGMENT initially one Bhukel (Rughnathpur) Group Seva Sahakari Mandali Ltd.
[hereinafter referred to as "Primary Society"] by passing the resolution, sent the name of the petitioner as its delegate. Accordingly, the name of the petitioner was mentioned in the provisional list of voters as published under Rule 4, as delegate of the aforesaid Primary Society. It appears that thereafter as permitted under subRule (2) of Rule 5, the Primary Society by passing the resolution changed its delegate and instead of petitioner, nominated the respondent No.5 herein as its delegate and accordingly in the final list of voters, the name of respondent No.5 was included as delegate of the Primary Society. It appears that against inclusion of the name of respondent No.5 in the final list of voters as delegate of the aforesaid Primary Society, petitioner and others raised an objection and the Election Officer rejected the objections raised against inclusion of the name of the respondent No.5 in the final list of voters as delegate of the aforesaid Primary Society, against which the petitioner and others preferred Special Civil Application before this Court, which has been withdrawn with a liberty to file the election petition after election. That after the preparation and publication and declaration of the final list of voters and as the name of respondent No.5 was included in the final list of voters, the respondent No.5 had filled in the nomination for the post of Director of the Specified Society. At that stage and at the stage of scrutiny of the nomination filled in by the respondent No.5, the petitioner raised an objection against the nomination of the respondent No.5 on the ground that the respondent No.5 is not eligible to become the member of the Primary Society as per the byelaws of the Primary Society, as neither he is resident of village Bhukel nor the owner and occupier of any agricultural land in Bhukel. Therefore, it was the case on behalf of the petitioner that the petitioner is disqualified to become the member of the Primary Society, his nomination for the post of Director of the Specified Society is required to be rejected. At this stage it is required to be noted that as Page 3 of 26 C/SCA/14199/2014 CAV JUDGMENT such against the resolution of the Primary Society nominating the name of the respondent No.5 as its delegate and against the membership of the respondent No.5 as member of the aforesaid Primary Society, a substantive suit / Lavad Suit is pending before the competent Court. That by impugned order the respondent No.3 - Election Officer has overruled the objections raised by the petitioner against the nomination of the respondent No.5 to contest for the post of Director of the Specified Society and after giving opportunity to the respondent No.5, by impugned order, the respondent No.3 has accepted the nomination of the respondent No.5 by observing that at the time of scrutiny under Rule 23 of the Rules, the Election Officer is not required to go into the legality and validity of the membership of a delegate of the Primary Society.
[2.2] Feeling aggrieved and dissatisfied with the impugned order / decision of the Election Officer in accepting the nomination of respondent No.5 - delegate of the Primary Society, to contest for the post of Director of the Specified Society, the petitioner who was also one of the candidate has preferred the present Special Civil Application under Article 226 of the Constitution of India.
[3.0] Shri Dhaval Dave, learned Counsel appearing on behalf of the petitioner has vehemently submitted that the Election Officer has materially erred in accepting the nomination of the respondent No.5 by overruling the objections raised by the petitioner. It is submitted that while exercising the powers under Rule 23 of the Rules, a duty is cast upon the Election Officer / Returning Officer to examine the nomination papers and is required to decide all the objections which may be to any nomination including the objection that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or byelaws. It is submitted that therefore while exercising the powers under Rule 23 of the Rules, the Returning Officer is required to examine the question whether a candidate is qualified to become the member of the Primary Page 4 of 26 C/SCA/14199/2014 CAV JUDGMENT Society or not. It is submitted that the aforesaid includes the question whether a delegate of the Primary Society is eligible to become the member of the Primary Society or not. It is submitted that unless and until the delegate is eligible to become the member of the Primary Society, he cannot be a valid delegate of a Primary Society. It is submitted that in the present case as per the byelaws of the Primary Society more particularly byelaw No.4, respondent No.5 is disqualified to become the member of the aforesaid Primary Society inasmuch as he is neither a resident of village Bhukel nor is the owner and occupier of any agricultural land in Bhukel. It is submitted that therefore if the respondent No.5 is not eligible to become the member of the Primary Society of which he is the delegate, he is not eligible to contest the election for the post of Director of the Specified Society.
[3.1] It is further submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that an inquiry contemplated by Rule 23 of the Rules is not required to be confined to the disqualification incurred by the concerned candidate proposing to contest election to the managing committee [Board of Directors] of the concerned Specified Society with reference to the byelaws of the concerned Specified Society. It is submitted that the inquiry contemplated by Rule 23 of the Rules is required to be read into with respect to disqualification incurred by the concerned candidate even as member of the Primary Society of which he is the delegate. It is submitted that if it had been the intention of the legislature to confine the inquiry under Rule23 of the Rules with reference to the byelaws of the Specified Society, Rule 23(2)(a) of the Rules would have specifically referred to the byelaws of the Specified Society instead of simply referring to the expression "byelaws".
[3.2] It is further submitted that therefore when provision contained in Rule 23 does not specifically refer to the byelaws of the Specified Society, while referring to the expression "byelaws", there is no need to Page 5 of 26 C/SCA/14199/2014 CAV JUDGMENT read expression "byelaws" of the "Specified Society" in Rule 23 of the Rules, while referring to the expression "byelaws" appearing in Rule 23.
[3.3] It is further submitted that by reading in Rule 23 of the Rules, the expression "byelaws" appearing therein, it will not subserve the object for which the Rule 23 has been framed. It is submitted that Rule 23 is aimed at conferring right upon the contestant to the election to object to the candidature of the other contestant if such contestant is not eligible to become the Director of the Board of Directors of the Specified Society. It is submitted that because it is the right of the contestant to see that he is pitted against the contestant who is otherwise eligible to hold the office for which he is contesting the election. It is submitted that therefore when only a member of the Managing Committee of Primary Society can become the Director of the Specified Society, it is within the right of the contestant to the election of the Board of Directors of the Specified Society to object to the candidature of the other contestant on the premise that such other contestant is not possessing the requisite qualification to become the member of the Managing Committee of the Primary Society and has, as such, incurred disqualification for the same.
[3.4] It is submitted that in view of the above, at the time of scrutiny of the nomination under Rule 23 of the Rules, an objection can be raised in respect of the disqualification incurred by the concerned contestant with reference to the byelaws of the Primary Society of which such contestant is the delegate.
[3.5] It is further submitted that subRule (7) of Rule 23 of the Rules also support the aforesaid interpretation of Rule 23. It is submitted tha subRule (7) of Rule 23 stipulates that inclusion of the name in the voters' list for election of the Board of Directors of the Specified Society is conclusive evidence till it is proved that the concerned candidate whose name is there in the voters' list is disqualified. It is submitted that Page 6 of 26 C/SCA/14199/2014 CAV JUDGMENT therefore it is implied that his disqualification is to be established with reference to the byelaws of the Primary Society.
[3.6] It is further submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that as such the inquiry under Rule 6 of the Rules is with reference to the right of the members of the Primary Society to object to the name of the delegate of the Primary Society in the list of voters for election to the Board of Directors of the Specified Society. However, as against the aforesaid, the inquiry under Rule 23 of the Rules is with reference to the right of the contestant to object to the candidature of the other contestant. It is submitted that therefore, both inquiry operate in different zones and hence, the former is not the substitute of other.
[3.7] It is submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that in the present case as the respondent No.5 is disqualified to become the member of the Primary Society, as per the byelaws of the Primary Society, he cannot be permitted to contest the election of the member of the Managing Committee of the Specified Society [as Director of the Specified Society]. It is submitted that therefore the respondent No.3 Election / Returning Officer has materially erred in overruling the objections raised by the petitioner against the nomination of respondent No.5 and consequently accepting the nomination of the respondent No.5.
It is submitted that therefore the respondent No.3 - Election / Returning Officer has materially erred in performing his statutory duty cast at the time of scrutiny of the nomination under Rule 23 of the Rules.
Making above submissions, it is requested to admit/allow the present Special Civil Application and grant the reliefs as prayed for.
[4.0] Present petition is opposed by Shri Satyen Thakkar, learned Page 7 of 26 C/SCA/14199/2014 CAV JUDGMENT advocate appearing on behalf of the respondent No.5 and Shri Dhawan Jayswal, learned AGP appearing on behalf of the Election / Returning Officer.
[4.1] Shri Dhawan Jayswal, learned AGP appearing on behalf of the Returning Officer has vehemently submitted that as the name of the respondent No.5 was included in the final list of voters as delegate of the Primary Society at the time of scrutiny of the nomination of the respondent No.5 as delegate of the Primary Society, the Returning Officer is not required to consider with respect to the alleged disqualification of the respondent No.5 as member of the Primary Society. It is submitted that, that can be the subject matter before appropriate Court/Forum. However so far as the Returning Officer is concerned, he has no such jurisdiction while exercising the powers under Rule 23 of the Rules to consider the disqualification of the delegate of a Primary Society, as member of the Primary Society. It is submitted that in the present case as such the aforesaid question is already pending before the appropriate Court/Forum / learned Board of Nominees and therefore, the Returning Officer has rightly overruled the objections raised by the petitioner against the nomination of the respondent No.5 and has rightly accepted the nomination of the respondent No.5 by observing that so far as the issue/question with respect to the respondent No.5 as member of the Primary Society, parties are required to abide by the decision that may be rendered in the pending proceedings before appropriate Court/ Forum. It is submitted that therefore, the respondent No.3 Election Officer / Returning Officer has rightly exercised the powers conferred under Rule 23 of the Rules.
[5.0] Shri Satyen Thakkar, learned Counsel appearing on behalf of the respondent No.5 has vehemently opposed the present petition. He has vehemently submitted that as such as on today the name of the respondent No.5 is included in the final list of voters, as delegate of Page 8 of 26 C/SCA/14199/2014 CAV JUDGMENT Primary Society and therefore, unless it is shown that the respondent No.5 is disqualified to become the Director of the Specified Society as per the Act, Rules or byelaws, the respondent No.5 is entitled to contest the election and therefore, the Returning Officer has rightly accepted the nomination of respondent No.5 by observing that at the time of scrutiny of the nomination under Rule 23 of the Rules, he has no jurisdiction to enter into the issue / question whether the respondent No.5 is disqualified to become the member of the Primary Society or not.
[5.1] It is submitted by Shri Satyen Thakkar, learned advocate appearing on behalf of the respondent No.5 that the inquiry contemplated under Rule 23 of the Rules i.e. at the stage of scrutiny of the nomination is confined to whether a candidate who has filled in the nomination is disqualified to become the Director, as per the Act, Rules or byelaws of the Specified Society or not. It is submitted that at that stage i.e. at the stage of scrutiny of nomination, the Election Officer is not required to consider whether a candidate as delegate of the Primary Society, is disqualified to become the member of the Primary Society or not, more particularly when the name of such candidate as delegate of the Primary Society is included in the final list of voters. It is submitted that any interpretation contrary to the same more particularly as contended on behalf of the petitioner would lead to expanding the scope of the inquiry under Rule 23 of the Rules i.e. at the stage of scrutiny of the nomination, which is not permissible.
[5.2] It is further submitted by Shri Thakkar, learned Counsel appearing on behalf of the respondent No.5 that as such Rule 23(2)(a) of the Rules is very clear. It is submitted that as per Rule 23 of the Rules, at the time of scrutiny of the nomination papers, the Returning Officer is required to examine the nomination papers and decide all objections which may be to any nomination on the ground mentioned in subRule (2) of Rule 23 i.e. (a) that the candidate is disqualified for being chosen to fill the seat Page 9 of 26 C/SCA/14199/2014 CAV JUDGMENT by or under the Act, Rules or byelaws; (b) that the proposer or seconder is disqualified from subscribing a nomination paper; (c) that there has been failure to comply with any of the provisions of Rule 19 or 21; or
(d) that the signature of the candidate or the proposer on the nomination paper is not genuine. It is submitted that therefore the inquiry contemplated under Rule 23 of the Rules is required to be confined to the ground mentioned in Rule 23(2), however subject to subRule (3) and subRule (4) of Rule 23 of the Rules. It is submitted that as per Rule 23(2)(a) of the Rules, the Returning Officer is required to examine the nomination paper and decide the objections which may be of any nomination on the ground that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or byelaws. It is submitted that therefore the disqualification of a candidate shall be for being chosen to fill the seat i.e. the disqualification to become the Director of a Specified Society under the Act, Rules or byelaws. It is submitted that even subRule (7) of Rule 23 of the Rules provides that an entry made in the voters list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified, meaning thereby he is disqualified for being chosen to fill the seat i.e. Director of the Specified Society. It is submitted that therefore true interpretation may be that if the name of the candidate is included in the final list of voters, he is entitled to contest the election unless it is proved that he is disqualified to become the member / Director of the Specified Society under the Act, Rules or byelaws of the Specified Society. It is further submitted by Shri Thakkar, learned Counsel appearing on behalf of the respondent No.5 that in the present case, a substantive suit is already pending in the competent Court challenging the resolution passed by the Primary Society nominating the name of the respondent No.5 as delegate of the Primary Society on all the grounds mentioned in the present petition inclusive of the ground that the respondent No.5 is Page 10 of 26 C/SCA/14199/2014 CAV JUDGMENT disqualified to become the member of the Primary Society and therefore, his name ought not to have been send as delegate of the Primary Society. It is submitted that therefore the Returning Officer has rightly refrained himself from entering into the said question while exercising the powers under Rule 23 of the Rules.
[5.3] Shri Thakkar, learned Counsel appearing on behalf of respondent No.5 has heavily relied upon the decision of the Division Bench of this Court in the case of Arvindbhai Singhabhai Gamit v. Election Officer and Deputy Collector & Anr. reported in 2012(3) GLH 881 as well as the decision of the Division Bench of this Court in the case of Hirabhai Jesangbhai Khasor v. Election Officer and Dy. Collector and Ors. reported in 2009(1) GLH 176 as well as the decision of the Division Bench of Bombay High Court in the case of Abdul Khalekh Mohd Musa v. Ramkrishna Maroti Bangar reported in 1985(2) BCR 250 in support of his above submissions.
Making above submissions and relying upon above decisions, it is requested to dismiss the present petition Special Civil Application.
[6.0] Heard learned advocates appearing on behalf of the respective parties at length. A short but an interesting question of law which is posed for consideration of this Court is with respect to the jurisdiction of the Election Officer at the time of scrutiny of the nomination of the candidates under Rule 23 of the Rules and whether at the time of holding the inquiry and exercising the powers under Rule 23 of the Rules i.e. at the time of scrutiny of the nomination of a candidate, whether the Election Officer / Returning Officer has jurisdiction to consider whether the voter as a delegate of a Primary Society is disqualified to become the member of the Primary Society or not?
[6.1] The relevant rules which are required to be considered while deciding the aforesaid issue under the Rules are as under:
Page 11 of 26 C/SCA/14199/2014 CAV JUDGMENT"5. Particulars to be included in provisional list of voter. (1) The provisional list of voters, in the case of individual share holders, shall contain the name, father's / husband's name, surname (if any) of every person entitled to be registered as a voter, with such other particulars as may be necessary to identify him.
(2) Where a society is a member of a specified society, the specified society shall call for the name of the delegate duly authorised to vote at an election on behalf of the affiliated society, so as to reach it within ten days next after the date of drawing up the accounts. While communicating the name of its delegate to the specified society, the affiliated society shall enclose a copy of the resolution of the society or its committee under which the delegate is so authorised. The specified society shall include in the list of voters the names of all such delegates as have been communicated to it before the date fixed for publication of the provisional list. In addition to the names of the delegates, the list shall contain the names of the affiliated societies, their registration numbers and addresses and the names of constituencies, if any, to which they belong. A society which has communicated the name of its delegate shall by like resolution be permitted to change the name of its delegate upto the sixth day before the date appointed by the Collector under Rule 16 of said rules for making nominations.
6. Claims and objections to provisional list of votes. (1) When any provisional list of voters is published for inviting claims and objections, any omission or error in respect of the name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorised to vote on behalf of such society.
(2) Every person making a claim or raising an objection shall to do so by a separate petition, which shall be presented to the Collector during office hours within seven days from the date on which the provisional list of voters is displayed on the notice board under subrule (2) or (5) of Rule4, as the case may be.
(3) Every claim or objection shall be prepared in writing and state the grounds on which the claim is based or the objection is raised, as the case may be.
(4) The Collector shall, after considering each claim or objection give his decision thereon in writing to the concerned within ten days from the date of receipt of the claim or objection under sub rule (2) and take steps to correct the provisional list wherever necessary. The list as finalised by the Collector after deciding all claims and objections shall be the final list of voters.
7. Final list of voters. Copies of the final list of voters of every Page 12 of 26 C/SCA/14199/2014 CAV JUDGMENT society shall be displayed on the notice board of offices of the Collector, the District Registrar concerned and the society.
18. Nomination of candidates. (1) Any person may be nominated as a candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provisions of the Act, Rules and byelaws and his name is entered in the list of voters:
Provided that where a society sends the candidate to stand at election, such society shall pass a resolution in its managing committee authorising such candidature and the nomination form of such candidate shall be accompanied by a certified of such resolution:
Provided further that in the case of joint or associate member, only the member whose name stands first in the share certificate shall be eligible to be nominated as a candidate for the election.
(2) Every nomination paper presented under Rule 19 shall be completed in Form II:
Provided that, a failure to complete or a defect in completing the declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of subrule (3) of Rule 23.
(3) Any person whose name is entered in the list of voters may be a proposer or a seconder for nominating a candidate for election:
(4) The resolution referred to in subrule (1) shall be distinct and in addition to the resolution of a society for electing its delegate to vote on its behalf at the election of federal society.
(5) A nomination paper shall be supplied by the Returning Officer to any voter on demand.
23. Scrutiny of nomination papers.(1) On the date fixed for the scrutiny of nomination papers under Rule 16, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at the time and place appointed in this behalf under Rule 16, and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates, which have been delivered as required by Rule 19.
(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be to any nomination Page 13 of 26 C/SCA/14199/2014 CAV JUDGMENT 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 any of the following grounds, that is to say:
(a) that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or byelaws;
(b) that the proposer or seconder is disqualified from subscribing a nomination paper;
(c) that there has been failure to comply with any of the provisions of Rule 19 or 21;
(d) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (c) or (d) of subrule (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committeed.
(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under Rule 16 and shall not allow any adjournment of the proceedings, except when such proceedings are interrupted or obstructed by riot or open violence or by cause beyond his control:
Provided that, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection.
(7) For the purpose of this rule, the production of certified copy of an entry made in the voters list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified."Page 14 of 26 C/SCA/14199/2014 CAV JUDGMENT
[6.2] In the present case, initially the name of the petitioner was sent by the Primary Society as its delegate and accordingly the name of the petitioner was included in the provisional list of voters. However subsequently the Primary Society by passing the resolution has changed its delegate as permissible under the Rules more particularly subRule (2) of Rule 5 and accordingly the name of the respondent No.5 has been included in the final list of voters as its delegate. It is required to be noted that initially objections were raised by the petitioner and others against including the name of the respondent No.5 in the final list of voters as delegate of the Primary Society, and as such objections came to be overruled against which the petitioner and others preferred Special Civil Application which has been withdrawn with a liberty to file election petition after the election is held. Therefore, as on today, the name of the respondent No.5 is included in the final list of voters for the election of members of the Board of Directors of the Specified Society [as Directors of the Specified Society]. That thereafter as the name of respondent No.5 is included in the final list of voters and therefore, he has filled in the nomination for the election as a member/Director of the Specified Society. Objections were raised by the petitioner against his nomination on the ground that the respondent No.5 is disqualified and/or ineligible to become the member of the Primary Society and therefore, he cannot contest the election of the member/Director of the Specified Society. The aforesaid objections are overruled by the respondent No.3 Election Officer by impugned order on the ground that at the time of holding the necessary inquiry and at the time of scrutiny of the nomination paper under Rule 23, the Returning Officer has no jurisdiction and/or authority to inquire into whether a candidate is disqualified to become the member of the Primary Society or not. At this stage it is required to be noted that and as observed hereinabove, even a substantive suit / Lavad Suit is pending before the competent Court / Page 15 of 26 C/SCA/14199/2014 CAV JUDGMENT learned Board of Nominees against the respondent No.5 and the resolution passed by the Primary Society to nominate the respondent No.5 as its delegate has been challenged on the very grounds which are raised here. It is contended on behalf of the petitioner that at the stage of scrutiny of the nomination paper under Rule 23 of the Rules, the Election / Returning Officer is also authorized to hold the inquiry whether the candidate is disqualified to become the member of the Primary Society as per the Act, Rules and the byelaws of the Primary Society or not. On the other hand it is the case on behalf of the respondents that at the stage of holding inquiry/scrutiny of the nomination paper under Rule 23 of the Rules, the Election / Returning Officer has no jurisdiction and/or authority to enter into the question whether a candidate who has filled in the form being a voter as delegate of the Primary Society, is disqualified to become the member of the Primary Society or not.
[6.3] While appreciating the aforesaid rival submissions, the scheme of the statutory provisions is required to be considered. The relevant Rules under the Rules, are reproduced herein above.
[6.4] The provisions for preparation of provisional list of voters, as prescribed in Rule 4, inter alia, provides that a provisional list of voters shall be prepared by every society for the year in which general election is due to be held. Under the provisions of Rule 5 (2) where a society is a member of a specified society, the specified society shall call for name of the delegate duly authorized to vote at an election on behalf of affiliated society so as to reach it within ten days next after the date of drawing up the accounts. While communicating name of its delegate to the specified society, the affiliated society shall include a copy of the resolution of the society or its committee under which the delegate is so authorized. The Page 16 of 26 C/SCA/14199/2014 CAV JUDGMENT specified society shall include in the list of voters names of all such delegates as have been communicated to it before the date fixed for publication of provisional list.
[6.5] Under Rule 6 of the Rules, when any provisional list of voters is published for inviting claims and objections, any omission or error in respect of name or address or other particulars in the list may be brought to the notice of the Collector by any member of the society concerned who is a voter or any delegate authorized to vote on behalf of such society. The Collector shall after considering each claim or objection give his decision thereon in writing to the person concerned within ten days from the date of receipt of claim or objection and take steps to correct provisional list wherever necessary. The list so finalized by the Collector after deciding all claims and objections shall be final list of voters. Under Rule 9, the Collector shall, if necessary, appoint a returning officer for one or more constituencies as specified in its bye laws. According to Rule 11, it shall be the general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided in the Act, Rules and byelaws made thereunder.
[6.6] Rule 16 provides that the Collector, in consultation with the Registrar, in the case of societies falling under Clause (1) of Section 74C (1), and in consultation with the District Registrar concerned in case of societies falling under other clauses of Section 74C (1), shall draw the schedule for election and by order in Form I appoint the dates for making nominations, publication of nominations, scrutiny of nominations, publication of the list of valid nominees, date for withdrawal of candidature, date for publication of final list of contesting candidates and dates for polling, for counting of votes and for declaring Page 17 of 26 C/SCA/14199/2014 CAV JUDGMENT the result of voting. Rule 18 provides that, any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Act, Rules and bye laws and his name is entered in the list of voters; provided that where a society sends the candidate to stand at an election, such society shall pass a resolution in its managing committee authorizing such candidature and the nomination form of such candidate shall be accompanied by certified copy of such resolution. Under Rule 19, on or before the date appointed under Rule 16, each candidate shall either in person or by his proposer deliver to the returning officer during the time and at the place specified in the order made under Rule 16, a nomination paper completed as provided by Rule 18 and signed by the candidate and by two voters of his constituency, one of whom shall be proposer and the other as a seconder. Under Rule 22, the returning officer shall, on receiving the nomination paper under Rule 19, give a receipt thereof and inform the person or persons delivering the same of date, time and place fixed for scrutiny of nominations.
[6.7] The provisions of Rule 23 being material for the present purpose, relevant parts thereof may be quoted verbatim as under:
"23. Scrutiny of nomination papers.(1) On the date fixed for the scrutiny of nomination papers under Rule 16, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at the time and place appointed in this behalf under Rule 16, and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates, which have been delivered as required by Rule 19.
(2) The Returning Officer shall then 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 any of the following grounds, that is to say:
"(a) that the candidate is disqualified for being chosen to fill the Page 18 of 26 C/SCA/14199/2014 CAV JUDGMENT seat by or under the Act, Rules or byelaws.
(b) ..................
(c) ..................
(d) ..................
(3) ..............
(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under Rule 16 and shall not allow any adjournment of the proceedings, except when such proceedings are interrupted or obstructed by riot or open violence or by cause beyond his control:
Provided that, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection.
(7) For the purpose of this rule, the production of certified copy of an entry made in the voters list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified."
(underlines added) [6.8] The above scheme of the statutory provisions would clearly show that where a society is a member of a specified society, name of its delegate duly authorized to vote on behalf of the affiliated society has to be sent with the resolution and the specified society has to include in the list of voters, names of all such delegates as have been communicated to it before the date fixed for publication of the provisional list. If any claim or objection is raised against such nomination, the Collector has to consider such claim or objection and give his decision thereon and then correct the provisional list of voters, if necessary. The list so finalized by the Collector, after deciding all claims and objections, shall be final list of voters under Rule 6 (4). The procedure for making nominations for Page 19 of 26 C/SCA/14199/2014 CAV JUDGMENT election to a committee of the specified society, under Rule 16 commences thereafter. When the nomination of candidates for the election are duly presented, the detailed provisions in respect of scrutiny of nomination papers under Rule 23 shall apply. It is clear from bare reading of the provisions of Rule 23 that examination of nomination papers is restricted to the candidates, their agents, one proposer and one authorized person with each candidate and no other person is allowed to attend, when the returning officer examines the nomination papers. All objections, which may be to any nomination, have to be decided after such summary enquiry, if any, as the returning officer may think necessary; but rejection of any nomination could only be based on any of the four grounds mentioned in Rule 23 (2). The first among such grounds is that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or byelaws. Therefore, the disqualification for being chosen to fill the seat has to be based on any provision of the Act or the Rules and byelaws applicable to the specified society. If such disqualification is pointed out or comes to the notice of the returning officer on the basis of some authenticated and reliable material, he would be required to hold scrutiny on the date appointed in that behalf under Rule 16 and the candidate concerned may be allowed time of one day to rebut the objection; and then the returning officer has to record his decision by way of endorsement on the nomination paper. In case the decision is to reject the nomination, he has to record in writing brief statement of his reasons for such rejection. The provision of Subrule (7) of Rule 23 clearly stipulates that production of certified copy of an entry made in the voters list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified. Therefore, inclusion in the list of voters has to be accepted as conclusive evidence of right of such voter to stand for election and the only Page 20 of 26 C/SCA/14199/2014 CAV JUDGMENT exception that could be made is in case of the candidate being disqualified for being chosen to fill the seat; and, as seen earlier, the basis for disqualification of such voter has to be found in the Act itself or the Rules and byelaws applicable to the specified society. Such provision in the Rules clearly refers to and it is consistent with the provisions of Section 145F of the Act, the relevant part of which reads as under:
145F Disqualification for membership (1) A person shall be disqualified for being elected, as, and for being a member of the committee of any specified society
(a) if he is a salaried employee of any society (other than a society of employees themselves) or holds any office of profit under any society, except when he holds or is appointed to the office of a Managing Director or any other office under the society declared by the State Government by general or special order not to disqualify its holder;
(b) if he has been convicted of an offence punishable under Section 153A or Section 171E or Section 171F or subsection (2) or subsection (3) of Section 505 of the Indian Penal Code, 1860 (XLV of 1860), or under Section 145R or clause (a) of subsection (2) of Section 145S of this Act, unless a period of six years has elapsed since the date of his conviction;
(c) if he has been convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years, unless a period of five years has elapsed since his release;
(d) if he is found guilty of corrupt practice under this Chapter by the State Government unless a period of six years has elapsed Page 21 of 26 C/SCA/14199/2014 CAV JUDGMENT since the date on which the decision of the State Government takes effect;
(e) if he is also disqualified by or under any other provision of this Act.(underlines added) [(1A) ................................
(2) ................................
(3) ................................"
[6.9] Considering the aforesaid statutory provisions more particularly Rule 23, it can very well be said that at the time of scrutiny of nomination papers the Returning Officer is required to examine the nomination papers and is required to decide all the objections which may be to any nomination on the grounds set out and mentioned in sub Rule (2) of Rule 23. As per subRule (2) of Rule 23 more particularly subRule 2(a) of Rule 23 at the stage of scrutiny of nomination paper, Returning Officer is required to examine and consider and decide the objection, whether the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or byelaws. The words used in sub Rule 2(a) of Rule 23 "disqualified for being chosen to fill the seat" are very important. Therefore, on fair reading of Rule 23(2)(a), if it is found that a candidate is disqualified for being chosen to fill the seat i.e. the seat for which he has filled in the form i.e. for the post of member/Director of a Specified Society, by or under the Act, Rules or byelaws of such Specified Society then and then only his nomination paper can be rejected. The intention / idea seems to be that no candidate can be permitted to contest the election if he is otherwise disqualified to become the member / Director of the Specified Society for which he has filled in the nomination. Therefore, the inquiry which is contemplated under Rule 23(2)(a) of the Rules would be restricted to Page 22 of 26 C/SCA/14199/2014 CAV JUDGMENT whether a candidate is disqualified for the post for which he has filled in the nomination paper by or under the Act, Rules or byelaws of such Specified Society or not. At the stage of scrutiny of nomination papers under subRule (2), the Election Officer / Returning Officer is not required to hold the inquiry and/or examine and/or decide the objection whether such a candidate is disqualified to become the member of the Primary Society or not. At this stage it is required to be noted that being a delegate of a Primary Society name of such candidate is included in the final list of voters and that his name has been included in the final list of voters. SubRule (1) of Rule 18 of the Rules provides that any person may be nominated as a candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provisions of the Act, Rules or byelaws and his name is entered into the list of voters.
Therefore, subject to applying other procedure and passing a resolution etc. by a Primary Society, once name of the candidate is included in the final list of voters as delegate of the said Primary Society, he is entitled to be nominated as a candidate for election to fill a seat of a Specified Society. Even as per subRule (7) of Rule 23, production of a certified copy of entry made in the voters' list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election unless it is proved that the candidate is disqualified. Therefore, on conjoint reading of the aforesaid Rules and the scheme of the statutory provisions, it is to be concluded that at the time of scrutiny of nomination papers under Rule 23, the Returning Officer has no jurisdiction and/or authority to decide the objections which may be of any nomination on the ground that such a candidate is disqualified to become the member of a Primary Society under the Act, Rules or bye laws. Any contrary interpretation would be expanding the scope of inquiry contemplated at the time of scrutiny of nomination papers under Rule 23, which is not permissible. The Forum to challenge the Page 23 of 26 C/SCA/14199/2014 CAV JUDGMENT membership of a delegate as a member of the Primary Society may be subject matter of other proceedings. But that issue cannot be decided by the Election Officer at the time of scrutiny of the nominations under Rule 23 of the Rules.
[7.0] Identical question came to be considered by the Division Bench of this Court in the case of Arvindbhai Singhabhai Gamit (Supra) and on considering the very statutory provisions and while considering the authority of the Returning Officer in examining the nomination papers and deciding all objections, it is observed and held that the authority of the Returning Officer in examining the nomination papers and deciding all the objections is restricted to only making a summary inquiry, if any, as to whether the candidate has incurred any disqualification for being elected and whether the nomination was in order and complying with the relevant Rules. It is further observed and held by the Division Bench in the aforesaid decision that the inquiry contemplated under Rule 23 i.e. at the stage of scrutiny of nomination is very limited, restricted and expeditious scrutiny of the nomination papers by the returning officer, leaving for him only the simple task of deciding upon rejection or acceptance of nominations only on the basis of apparent or reliable and authenticated proof of disqualification incurred by a candidate under Section 145F of the Act. It is further held and observed that he shall have no jurisdiction or legal authority to delve into the right of the nominee to stand for election if he is already on the voters list and not disqualified, as aforesaid, under the provisions of Section 145F of the Act.
[7.1] The Division Bench of the Bombay High Court in the case of Abdul Khalek Mohd Musa (Supra) also had an occasion to consider the pari materia provisions under the Maharashtra Specified Cooperative Page 24 of 26 C/SCA/14199/2014 CAV JUDGMENT Societies Elections to Committee Rules, 1971 and even Rule 23 of the said Rules which is pari materia to the Rules and in para 7 it is observed and held as under:
"7. Following the steps which have been provided for in details in Rule 23, it is clear to us that the persons intending to take objections to the nominations of any candidates must remain present at the time and place fixed by the Returning Officer. It is at that the Returning Officer takes up the scrutiny of each nomination paper. At this time it is open to one or other persons to lodge their objection and state the grounds on which those objections are based. The Returning Officer then decides the objection which have been raised in respect of a particular nomination paper. The scrutiny of nomination paper envisaged in Rule 23 is not a roving enquiry allowing any person to raise objection at any time in respect of any nomination paper. In the procedure under Rule 23 is implicit the fact that the Returning Officer shall take up each nomination paper for scrutiny. It is the nomination paper which is the subjectmatter of scrutiny and not a general investigation into the various objection that are raised or may be raised by different persons. It is only when a particular nomination paper is taken are raised or may be raised by different persons. It is only when a particular nomination paper is taken up for scrutiny, a person is entitled to lodge his objection which will be decided by the Returning Officer. This process continues till all the nomination paper are scrutinized and the decisions are given one way or the other. The process of scrutiny itself must start at the time fixed for that purpose and must continue till all the nomination papers are scrutinized, and decisions on the nomination papers are given by the Returning Officer. If this process consume less than a normal working day, we do not see why the Returning Officer should continue to sit in his office waiting the arrivals of fresh objections. If the procedure fore scrutiny of nomination papers is as outlined by us above, namely, examination of each nomination paper separately, then after all the nomination papers are scrutinized and accepted or rejected, we do not see how fresh opportunity could be given to persons coming late and reopen the question of the validity of nomination paper already decided by the Returning Officer. A correct reading, therefore, of the provisions of Rule 23 persuades us to hold that in this said rule it is not envisaged that the Returning Officer shall remain in his office for a particular period of time and shall be available for entertaining fresh objections as and when they lodged despite the fact that the scrutiny of nomination papers is already over."
[8.0] In view of the aforesaid and for the reasons stated above and considering the entire scheme of the statutory provisions as a whole Page 25 of 26 C/SCA/14199/2014 CAV JUDGMENT referred to hereinabove and more particulalry when the name of respondent No.5 is included in the final list of voters as delegate of the Primary Society, the Returning Officer has rightly overruled the objections raised by the petitioner against the nomination of the respondent No.5 and has rightly accepted the nomination of respondent No.5. No error and/or illegality has been committed by the Election Officer / Returning Officer in accepting the nomination of respondent No.5 so long as the respondent No.5 continues to be the delegate of the Primary Society as a member of the Primary Society and his name is continued in the final list of voters.
[8.1] However, we make it clear that this order shall not affect other proceedings pending, if any, more particularly pending before the learned Board of Nominees and/or appropriate Appellate Tribunal where the resolution of the Primary Society nominating the respondent No.5 on the ground that respondent No.5 is disqualified to become the member of the Primary Society is challenged. We express no opinion on the merits of any such controversy.
[9.0] In view of the above and for the reasons stated above, present petition In view of the above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs. and the same deserves to be dismissed and is, accordingly, dismissed. Rule is discharged.
Sd/ (M.R. SHAH, J.) Sd/ (R.D. KOTHARI, J.) Ajay Page 26 of 26