Himachal Pradesh High Court
Dr. Rattan Chand Dogra vs State Of Himachal Pradesh And Ors. on 6 May, 1986
Equivalent citations: AIR1987HP17
ORDER T.R. Handa, J.
1. The Kangra Central Cooperative Bank Ltd., respondent No. 5, is a society registered under the Himachal Pradesh Co-operative Societies Act, 1969, hereinafter called the Act. A vacancy on the Board of Directors of this Bank which is its governing body for the purposes of the Act, arose which pertained to Hamirpur zone of the society. It may be observed that for the purposes of election to its governing body, this society had been divided into various zones. The vacancy referred to above was required to be filled by election which was to be conducted in accordance with the election rules found at Appendix 'A' to the Himachal Pradesh Cooperative Societies Rules, 1970, hereinafter called 'the Rules'.
2. In order to conduct such elections, the Managing Director of respondent No. 5 had drawn up detailed programme of election, a copy of which is found at Annexure-A. Invitations were also given to the eligible candidates to file their nomination papers to contest this election. In response to those invitations the petitioner as also Shri Bhum Dev, respondent No. 4, filed their nomination papers. In fact they were the only two candidates who filed their nomination papers to contest this election. Whereas the nomination papers filed by respondent No. 4 were accepted, the same filed by the petitioner were rejected by respondent No. 3 who had been appointed as a Returning Officer for the purposes of this election. The petitioner apprehended that respondent No. 3 had rejected his nomination papers on ulterior consideration as this respondent was interested in the election of respondent No. 4 who was the only other candidate at the election. The petitioner, however, was not informed of the reasons which weighed with respondent No. 3 in rejecting his nomination papers. He, therefore, approached this Court with the present writ petition under Articles 226/227 of the Constitution praying that the order passed by respondent No. 3 rejecting his nomination papers be quashed and directions be issued to this respondent to continue and complete the election process in accordance with the election programme found at Annexure-A after accepting the nomination papers of the petitioner.
3. The respondents in their reply affidavit justified the order of respondent No. 3 rejecting the nomination papers of the petitioner. A copy of the order pased by respondent No. 3 rejecting the nomination papers of the petitioner was annexed with this reply as Annexure-R3. This order speaks for itself and shows that the nomination papers of the petitioner were rejected on the ground that the petitioner being already a member of the managing committees of two other secondary societies, he could not be appointed on the managing committee of yet another society in view of the bar placed by Rule 42 of the Rules. In other words, according to the view of the learned Returning Officer, it was not open for the petitioner to contest election for membership on the managing committee of a third society when he was already a member of the managing committees of two other societies.
4. It may be observed at this stage that Shri Bhumi Dev, respondent No. 4, whose nomination papers had been accepted and who was thus the only candidate in the field, expired during the pendency of this writ petition. It is not disputed before me that on account of the death of respondent No. 4, the election in question has to be countermanded and that the further election process in terms of the election programme found at Annexure-A cannot proceed. A fresh election programme shall have now to be issued.
5. Shri Bhawani Singh, the learned counsel appearing for the petitioner, however, submits that in the circumstances a direction be issued to the respondents to hold the fresh election within a specific period and that this Cout should pronounce its verdict on the validity of the impugned order passed by respondent No. 3 in rejecting the nomination papers of the petitioner. Such verdict, according to the learned counsel is required at this stage since the petitioner apprehends that his nomination papers would once again be rejected on the same ground which, according to him, does not exist in law. The submission looks quite reasonable.
6. Section 34 of the Act enjoins that the management of every society shall vest in a managing committee constituted in accordance with the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively, by this Act, the rules and the bye-laws. Rule 37 of the rules then provides that the members of the managing committee of a co-operative society shall be elected in accordance with the rules given in Appendix 'A, hereinafter called the 'Election Rules'. Rule 2 of the Election Rules enjoins that no person shall be eligible for election as a member of the committee if he is subject to any disqualification mentioned in rule 41. Rule 41 reads :
"41. Disqualification for membership of committee.-
(1) No person shall be eligible for appointment or election as a member of the committee of any society, if he-
(a) is an applicant to be adjudicated a bankrupt or is an insolvent or an uncertificated bankrupt or an undischarged insolvent; or
(b) has been sentenced for any offence other than an offence of a political character or any offence not involving moral delinquency, such sentence not having been reversed or the offence pardoned; or
(c) is of unsound mind; or
(d) a paid employee of the society or of any Co-operative Society; or
(e) is in the same line of business as conducted by the society; provided that if any question arises whether a person is or is not in the same line of business, the question shall be referred to the Regisrar and his decision shall be final; or
(f) is concerned with the profits of any contract entered with the society except in transactions made with the society as a member in accordance with the objects of the society as stated in the bye-lays, provided that if any question arises whether a person is or is not so concerned with the profits of any contract, the question shall be referred to the Registrar and his decision shall be final; or
(g) is, except with the sanction of the Registrar, already the member of the committee of any other society of the same type; or
(h) has been sued in arbitration in a society, and the award given against him stands unsatisfied wholly or partially, or
(i) is or
(i) is a near relation of a paid employee of the society, provided that if any question arises whether a person is or is not a near relation of a paid employee of the society, the question shall be referred to the Registrar and his decision shall be final; or
(j) is a defaulter of any society; or
(k) Has been debarred from becoming an officer of any society under Rule 58; or (1) is under 21 years of age.
(2) A member of the committee of any society shall cease to hold office as such if he-
(a) applies to be adjudicated, or is adjudicated a bankrupt or an insolvent; or
(b) is sentenced for any such offence as is described in clause (b) of Sub-rule (1); or
(c) becomes of unsound mind; or
(d) becomes a paid employee of the society or any other society; or
(e) enters on the same line of business as conducted by the society; or
(f) becomes concerned with profits of any contract entered into by the society except in transactions made with the society as a member, in accordance with the objects of the society as stated in the bye-laws; or
(g) becomes a member of the committee of any other society of the same type, except with the sanction in writing of the Registrar; or
(h) becomes a near relation of the paid employee of the society; or
(i) becomes a defaulter of any debt or dues directly, or indirectly of his society or of any other society; or
(j) is debarred from becoming an officer of any society under Rule 58; or
(k) ceases to be a member of the society; or
(l) is found to be under 21 years of age."
7. In the face of this rule before a member can be said to be disqualified to contest an elelction to the managing committee of the society, he must be shown, to suffer from one of the disqualifications enumerated in the rule quoted above. In the instant case it is not in dispute that the petitioner suffers from none of these disqualifications. The Returning Officer, however, in passing the impugned order has relied upon the provisions of Rule 42. This rule reads :
"42. Term of office of member of committee who is a delegate of another society.-- A delegate of one society sitting on the committee of another society shall cease to be a member of such committee : --
(a) if the society which elected him as a delegate withdraws him or elects another delegate in his place; or
(b) in case he was elected as a delegate by a society on the supersession of the committee of such society under Section 37 of the Act, provided that the person or persons appointed by the Registrar under the said section shall have power to nominate himself or one among them or any member of the society, to the committee of another society; or
(c) if the registration of the society of which he is a delegate, is cancelled; or
(d) if he ceases to be a member of the society of which he is a delegate; or
(e) if the society which he represents is ordered to be wound up from the date on which the order of winding up takes effect under Sub-section (3) of Section 78 :
Provided that no individual shall be a member of a managing committee of more than two secondary societies at a time :
Provided further that a delegate representing a viable or potentially viable society shall only be eligible to seek election to the managing committee of a secondary society, the criteria for viable and potentially viable societies being determined by the Registrar."
8. It is the language of the first proviso to Rule 42 extracted above which appears to have influenced the Returning Officer in rejecting the nomination papers of the petitioner. The Returning Officer in my view misdirected himself in invoking the provisions of Rule 42 for rejecting the nomination papers of the petitioner. The only provisions which deal with the qualifications and disqualifications of candidates for contesting election as member of the committee of a cooperative society are found in Rule 2 of the Election Rules and Rule 41 of the Rules adverted to above. The petitioner as earlier stated, is not disqualified by either of these two provisions. Rule 42 which has been ' invoked by the Returning Officer in rejecting the nomination papers of the petitioner is totally irrelevant for this purpose. The provisions of this rule would come into play only after an individual has been duly elected as a member of the committee and is shown to be already holding membership of managing committees of two other secondary societies. In a situation of this type he would then be put to his choice as to which of the three offices to which he stands elected, he would like to vacate. That is the only reasonable interpretation that can be given to Rules 41 and 42 and the Election Rule 2. In case the intention of the framer of the Rules was to disqualify a member who was already on the managing committee of two secondary societies, from contesting election to the committee of a third society, this, disqualification would have been included either in Rule 41 or in express words in the Election Rules, Neither the Rules nor the Election Rules, however, disqualify an individual from contesting election to the managing committee of more than two societies at a time. All that the Rules provide is that an individual cannot hold offices of member of managing committee in respect of more than two societies at a time suggesting thereby that in case an individual is elected as a member of the managing committee of the third society while holding similar offices in two other socieites, he must vacate one of the three offices held by him. It is naturally for the individual himself to choose as to which of the three offices he would prefer to vacate. The impugned order of the Returning Officer found at Annexure-R3 rejecting the nomination papers of the petitioner on the ground that he was already a member of the managing committees of two other societies is, therefore, unsustainable in law arid is hereby quashed. A direction is also issued to the respondents to hold fresh election to fill the vacancy existing in the Board of Directors of respondent No. 5, within three months from today.