Bombay High Court
Mrs. Sangita Balasaheb Kokare & Ors vs Alka Vijayrao More & Ors on 25 November, 2011
Author: Girish Godbole
Bench: Girish Godbole
1 29.wp9287.09
ast
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9287 OF 2009
Mrs. Sangita Balasaheb Kokare & ors. ....Petitioners.
Vs.
Alka Vijayrao More & ors. ....Respondents
Mr. A. A. Kumbhakoni i/b. Mr. A.P. Kulkarni, Advocate for Petitioners.
Mr. S.S. Kulkarni, Advocate for Respondent No. 1.
Mr. R.M. Patne, AGP for Respondent Nos. 2 to 9.
CORAM:- GIRISH GODBOLE, J
DATED:- NOVEMBER 25, 2011
ORAL ORDER :
1. At the outset, Mr. Kumbhakoni seeks deletion of Respondent No. 8 Mr. Ajit A. Pawar from the array of parties in view of the interim order dated 2/9/2009 passed by the Additional Commissioner, Pune Division, Pune in Election Petition No. Pune/10/2007. Shri Ajit Pawar was joined as Respondent No. 10 in the Election Petition and by the aforesaid order he was deleted. This Order has attained finality and on this ground Mr. Kumbhakoni seeks deletion. Accordingly deletion of Respondent No. 8 is ::: Downloaded on - 09/06/2013 17:57:01 ::: 2 29.wp9287.09 granted. Amendment to be carried out forthwith in the court.
2. Rule. Rule made returnable forthwith since the Respondent No. 1 is the contesting candidate and since the notice issued on 18th November, 2009 was for final disposal, service of Rule on other Respondents except Respondent Nos. 2 and 9 is waived. Learned AGP appears on behalf of the Respondent Nos. 2 and 9.
3. A very short controversy arises in this Petition. Respondent No.1 has filed Election Petition No. 10 of 2007 under section 144T of the M.C.S. Act, 1960 before the Divisional Commissioner. Respondent Nos.
4 to 6 in that petition who are Petitioners herein are the 3 candidates elected from the 3 seats reserved for women in the elections of Malegaon Sahakari Sakhar Karkhana which is specified Society under Section 73G of the Act. Elections of Specified Societies are governed by Chapter XIIA of the Act and the Maharashtra Specified Cooperative Societies Election to Committee Rules, 1971 (hereinafter referred to as 1971 Rules). There is no dispute that the total number of the members of the Managing Committee of the Karkahana/Cooperative Society is 26, out of which 18 are to be elected from the general category A class. One is to be elected from the Society representatives in B class and the remaining 7 are ::: Downloaded on - 09/06/2013 17:57:01 ::: 3 29.wp9287.09 statutory reservations. The only dispute in this Petition is whether in the Election Petition filed by the Election Petitioner where she is seeking a limited relief of setting aside elections of 3 Women Candidates, then in the Election Petition all the returned candidates or all contesting candidates from all the other categories other than the 3 seats reserved for women are required to be joined as parties. This dispute revolves around the proper interpretation of Rule 75 of the 1971 Rules. According to the Petitioners, considering the nature of averments made in the Election Petition, though no relief had been sought against the elections of candidates other than the women candidates, all the contesting candidates in respect of all the categories were necessary parties. The Petitioners therefore filed an application for dismissal of the Election Petition on 18/9/2009 on the ground that all the necessary parties have not been impleaded. By the impugned order dated 8/10/2009 the Additional Commissioner, Pune Division, Pune has dismissed that application dated 18/9/2009. After quoting Rule 75, the Additional Commissioner has given the following reasons.
"Rule 75 : Parties to the petition----- A petitioner shall join as respondents to his petition,
a) where the petitioner, in addition to claiming a declaration that election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the ::: Downloaded on - 09/06/2013 17:57:01 :::
4 29.wp9287.09 petitioner and where no such further declaration is claimed all the returned candidates, and
b) any other candidate against whom allegations of any corrupt practice are made in the petition.
The plain reading of sub-rule (a) as above, makes it clear that, given the facts of the present petition where the petitioner has claimed that election of all the three returned candidates i.e. Lady Directors, is void and has also further claimed that she herself should be declared as duly elected, the petitioner was bound to join all the contesting candidates other than herself as respondents to the petition. In the case on hand, the petitioner has joined all the other six contesting candidates who contested for these three seats, reserved for Ladies as respondents and hence proper and legal compliance of Rule 75 is made by the petitioner, in my opinion.
For the findings recorded as above, I pass the following order with regard to the application dated 18/9/2009 in question, ig ORDER The application made by the respondent nos. 4, 5 and 6 on 18/9/2009 for non-compliance of Rule 75 by the petitioner is rejected.
Sd/-
(R.N. JOSHI)
PUNE. ADDITIONAL COMMISSIONER,
DATE :-08/10/2009 PUNE DIVISION, PUNE."
4. I have heard Mr. Kumbhakoni, Advocate for the Petitioner and Mr. S. S. Kulkarni, Advocate for Respondent No. 1 who is the contesting Respondent. According to Mr. Kumbhakoni, since Rule 75 does not make any distinction between the candidates elected from the General category or the candidates elected from a particular category, all candidates who contested the election of the Society must be joined as parties. On the other hand Mr. Kulkarni submitted that the Election Petition was filed ::: Downloaded on - 09/06/2013 17:57:01 ::: 5 29.wp9287.09 under section 144 T. He invited my attention to the Section 144 W and submitted that the second part of the sub-clause a of Rule 75 has to be read in the light of the first part of sub-clause a.
5. According to Mr. Kumbhakoni though seats are reserved, only one election is held, and according to him, if averments of alleged corrupt practice in the election petition are held to be proved that would not affect only the women members but would also affect the other elected candidates even from the general category and other reserved categories and hence, all of them were necessary parties.
6. I have considered the rival submissions. The M.C.S. Act, 1960 provides for various statutory reservations under various sections. Under Section 73B it is provided that 4 seats shall be reserved. One for members belonging to scheduled caste or schedule tribe and one for members belonging to other backward classes; one for members belonging to D.T., Vimukta Jatis, Nomadic Tribes or Special Backward Classes and one for the memberes belonging to weaker sections. Section 73BBB provides for reservation for women and the relevant portion of Sub-Section 1 of Section 73BBB reads thus :
::: Downloaded on - 09/06/2013 17:57:01 :::6 29.wp9287.09 "73BBB. Reservation of seats on committees of societies for women members and election thereto (1) Notwithstanding anything contained in this Act, or in the rules made thereunder, or in the bye-laws of any society, there shall be reserved seats for women on the committee of each society to represent the women members in the following manner, namely :-
(a) one sea on the committee consisting of not more than 9 committee members ;
(b) two seats on the committee consisting of 10 or more, but not exceeding 19 committee members; and
(c) three seats on the committee consisting of 20 or more committee members."
In the present case, since the total strength of the Committee is 26, 3 seats were reserved for women members. It is also necessary to note the provisions of Section 144W of the Act, which reads thus :
144W. Relief that may be claimed by the petitioner A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that the himself or any other candidate has been duly elected.
7. The Act clearly provides for different categories of reservations.
::: Downloaded on - 09/06/2013 17:57:01 :::7 29.wp9287.09 The real test to determine as to whether every candidate was a necessary party is to see whether substantive prayer in the Election Petition would have result of unseating every candidate. Rule 75 will have to be read by keeping in mind the provisions of section 73B and 73BBB and section 144W of the Act. A careful perusal of clause a of Rule 75 clearly shows that it is open to the Petitioner to claim a declaration that the election of all or any returned candidates is void Therefore if the Petitioner has chosen to seek a declaration that only the election of 3 candidates from the seats reserved for women is void, even if the Petitioner had sought a further declaration that she should be declared as elected; all the contesting candidates from women constituency alone would have been required to be joined as party Respondents. Perusal of the prayer clause in the Election Petition clearly shows that the Petitioner has not in fact sought a declaration that she should be declared as elected. In such a situation in which the first part of Clause a of Rule 75 will be applicable as the Petitioner in the Election Petition (Respondent No. 1 herein) has not sought a further declaration that she or any other candidate should be declared to have been duly elected. In this view of the matter, it is really not necessary for the Petitioner even to implead all the contesting candidates from the women category but factually she has impleaded all ::: Downloaded on - 09/06/2013 17:57:01 ::: 8 29.wp9287.09 the contesting candidates from the women category. Once on the basis of this factual background Rule 75 is interpreted, in my opinion, a harmonious construction of Rule will not contemplate impleadment of all the returning candidates even from the general category though no substantive relief is claimed against them. In view of this, the view taken by the Additional Commissioner is correct. There is no merit in the Writ Petition and the same deserves to be dismissed and accordingly, the same is dismissed. Rule is discharged.
(GIRISH GODBOLE, J) ::: Downloaded on - 09/06/2013 17:57:01 :::