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2016 DIGILAW 273 (BOM)

Babu J. Upardekar v. Returning Officer

2016-02-09

F.M.REIS, K.L.WADANE

body2016
JUDGMENT : Per F. M. Reis, J. Heard Mr. D. Pangam, learned counsel appearing for the petitioners and Ms. P. Bhandari holding for Mr. P. Dangui, learned Addl. Government Advocate appearing for the respondent nos. 1 and 2. 2. At the outset, Mr. Pangam, learned counsel appearing for the petitioners seeks leave to delete the respondent no.13. Leave granted. The respondent no.13 stands deleted at the risk of the petitioners. Amendment to be carried out forthwith. 3. Rule. Heard forthwith with the consent of the learned counsel. 4. Ms. P. Bhandari, learned Addl. Government Advocate waives service on behalf of the respondent nos. 1 and 2. Remaining respondents absent though notice was issued for final disposal at the stage of admission. 5. The above petition takes exception to an order dated 21.01.2016 passed by the respondent no.1 at Exhibit F to the petition and direction to the respondent no.1 to accept the nominations of the petitioners. 6. Briefly, the facts of the case as stated by the petitioners are that on 14.01.2016 the elections were declared for the board of directors of the respondent no.3 Cooperative Society and in terms of the Election Programme, the scrutiny of the nominations were scheduled from 21.01.2016 to 23.01.2016 and the petitioners accordingly filed their nominations for the post of directors. It is further contention of the petitioners that such nominations of the petitioners were rejected on 21.02.2016 by the respondent no.1 on the ground that the petitioners were disqualified under Section 61 of the Goa Cooperative Societies Act, 2001 in respect of another society i.e. MES Consumer Cooperative Society. Being aggrieved by the said order of rejecting the nominations of the petitioners, the above petition came to be filed by the petitioners seeking for the aforesaid reliefs. 7. Mr. Pangam, learned counsel appearing for the petitioners has pointed out that the alleged disqualification of the petitioners for the post of directors is in view of Section 60(1)(f) of the Goa Cooperative Societies Act, 2001 ( herein after referred to as “the said Cooperative Societies Act”). The learned counsel further pointed out that the alleged action of the respondent no.1 is due to the violation of the provisions not with regard to the subject society where the elections are being held but the purported disqualification is due to an alleged violation by the petitioners of another different society. The learned counsel further pointed out that the alleged action of the respondent no.1 is due to the violation of the provisions not with regard to the subject society where the elections are being held but the purported disqualification is due to an alleged violation by the petitioners of another different society. The learned counsel further pointed out that in cases of Section 60(1)(b) and Section 60(1)(c), a person can be disqualified for breaches in another society. The learned counsel has laid emphasis to the word “any society” in Section 60(1)(c) to advance his contention that the qualification thereof itself suggest that only in such cases a person can be disqualified as directors of a different society. The learned counsel further submits that admittedly either Section 60(1)(b) or Section 60(1)(c) are not attracted to the petitioners and as such the question of rejecting the nominations of the petitioners on the ground that they were disqualified as directors of another society would not arise. The learned counsel further points out that in all other situations as provided in Section 60, the words used “the society” which clearly signifies to be in connection with a particular society. The learned counsel further points out that the provisions of Section 60(f) of the said Cooperative Societies Act are not at all attracted in the present case as it clearly provide that any other disqualification as provided in the Act has to be treated as disqualification in the society where the elections are being held. The learned counsel further pointed out that the petitioners are not disqualified as directors of the subject society and as such the rejection of the nominations of the petitioners is bad in law. The learned counsel further pointed out that in terms of Section 61 of the said Societies Act, the disqualification of the petitioners would not in any way disqualification then in the subject society. The learned counsel further points out that non obstante clause in Section 61 itself qualifies that it contemplate other disqualification of the society. The learned counsel further points out that the petitioners have not been disqualified of being directors in terms of Section 61 of the said Cooperative Societies Act in respect of the subject society, and as such the question of alleging that the petitioners' nominations can be rejected on that count cannot be sustained. The learned counsel further points out that the petitioners have not been disqualified of being directors in terms of Section 61 of the said Cooperative Societies Act in respect of the subject society, and as such the question of alleging that the petitioners' nominations can be rejected on that count cannot be sustained. The learned counsel has taken us through the Cooperative Societies Rule 42 to point out that there are other situations where the directors can be disqualified in respect of a particular society. The learned counsel further points out that as the provisions of Section 61 and Rule 42 which contemplate the disqualification of the directors admittedly do not apply to the petitioners as the petitioners have not disqualified in terms of the said Rule in respect of the subject society, the impugned order passed by the respondent no.1 is totally unjustified. The learned counsel further points out that as far as the disqualification of the petitioners in another society is concerned, the orders are challenged in the petition pending before this Court in which Rule has been issued and the matter is under consideration. The learned counsel further points out that as such the conduct of the respondent no.1 for disqualification of the nominations of the petitioners is totally erroneous and cannot be sustained in law. The learned counsel further points out that the petition be allowed and the petitioners be allowed to contest the election. 8. The learned Additional Government Advocate appearing for the respondent nos. 1 and 2 has supported the impugned order. The learned Addl. Government Advocate has pointed out that in terms of Section 60(f) of the said Cooperative Societies Act, it clearly provides that any other disqualification attracts the rejection of the nominations. The learned counsel further pointed out that admittedly, the petitioners have been disqualified from the other society and as such the order passed by the respondent no.1 is in accordance with law. The learned counsel has thereafter taken us through the provisions of the said Cooperative Societies Act to point out that as the petitioners are disqualified in terms of Section 61(a) of the said Cooperative Societies Act, of another society, the impugned order passed by the respondent no.1 cannot be said to be erroneous. The learned counsel has thereafter taken us through the provisions of the said Cooperative Societies Act to point out that as the petitioners are disqualified in terms of Section 61(a) of the said Cooperative Societies Act, of another society, the impugned order passed by the respondent no.1 cannot be said to be erroneous. The learned counsel further pointed out that the petition itself is not maintainable as according to her the petitioners have an alternate remedy to challenge the impugned order before the Cooperative Tribunal. The learned counsel as such submits that the petition be rejected. 9. We have considered the submissions of the learned counsel and we have also gone through the records. With regard to the second contention of the learned Additional Government Advocate that the petitioners have an alternate remedy, we find that the respondent no.1 has proceeded in totally erroneous exercise of jurisdiction whilst dealing with the subject nominations of the petitioners and in order that the elections which are now fixed should not be further delayed, in the peculiar facts of this case, there is no bar in such circumstances to exercise our jurisdiction under Article 226 of the Constitution of India to advance the cause of justice. In the present case, the point for consideration is whether the disqualification of the directors of another society would attract the disqualification of filing nominations to the subject society. On perusal of the impugned order rejecting the nominations of the petitioners, we find that the only ground on which such nominations came to be rejected is that the petitioners have been disqualified in terms of Section 61 of the said Cooperative Societies Act vide order No. 19/12/2012 dated 27.08.2013 and, therefore, they are ineligible for being chosen as directors in the aforesaid society as provided under Section 60(1)(f) of the said Cooperative Societies Act. Section 60(1)(f) of the said Cooperative Societies Act, inter-alia provides that a person shall be ineligible for being chosen as a director if he has incurred any other disqualification under this Act or Rules made thereunder. Section 60(1)(f) of the said Cooperative Societies Act, inter-alia provides that a person shall be ineligible for being chosen as a director if he has incurred any other disqualification under this Act or Rules made thereunder. Section 61 of the said Cooperative Societies Act further provides that notwithstanding anything contained in the foregoing section, all the directors of the board shall be deemed to have incurred disqualification for a period of five years for being chosen as directors and shall be ineligible to continue as directors of the society, if during their term as directors of the society they did not conduct the annual general meeting etc. The disqualification as read into the provisions of Section 60 of the said Cooperative Societies Act would be for default in the subject society where the elections are being conducted. So also the provisions of Section 60(1)(f) are also in connection with any disqualification in respect of such subject society. Reading the said provisions, it cannot be said that a person can be disqualified from contesting as a director of the subject society merely because he was disqualified to be a director in respect of another Cooperative Society. Admittedly, in the present case, the petitioners were not disqualified to be directors in respect of the subject society in terms of Section 61 of the said Cooperative Societies Act and as such the question of invoking Section 60(1)(f) of the said Cooperative Societies Act to hold that the nominations of the petitioners could be rejected is erroneous and as such unsustainable in law. In fact, the provisions of Section 61 of the said Cooperative Societies Act operate in its own field and the non obstante clause therein clearly provides the additional disqualification of being a director is for default of the particular society. Consequently, the alleged disqualification of the petitioners under Section 60(1)(f) of the said Cooperative Societies Act to file their nominations for the post of directors cannot be sustained and deserves to be quashed and set aside. In such circumstances, we find that the impugned order passed by the respondent no.1 is erroneous and deserves to be set aside. The respondent no.1 has exceeded his jurisdiction while passing the impugned order without examining the correct import and the meaning of the said provisions of the Cooperative Societies Act. As rightly pointed out by Mr. In such circumstances, we find that the impugned order passed by the respondent no.1 is erroneous and deserves to be set aside. The respondent no.1 has exceeded his jurisdiction while passing the impugned order without examining the correct import and the meaning of the said provisions of the Cooperative Societies Act. As rightly pointed out by Mr. Pangam, learned counsel appearing for the petitioners that the disqualification of being directors in terms of Section 60 of the said Cooperative Societies Act for committing default in other society is specified only in two specific situations which are not admittedly available in the present case. In such circumstances, we find that in the interest of justice and for the reasons stated herein above, the impugned order passed by the respondent no.1 cannot be sustained and deserves to be quashed and set aside. 10. In view of the above, we pass the following : ORDER (i) The impugned order dated 21.01.2016 stands quashed and set aside. (ii) The respondent no.1 is accordingly directed to accept the nominations of the petitioners in accordance with law. (iii) Rule stands disposed of in the above terms with no order as to costs. (iv) The petition stands disposed of accordingly. (v) The parties to act on an operative part of the order duly authenticated by the learned Registrar (Judicial) of this Court.