Raghubhai Manjibhai Mungra v. Jamnagar District Co-operative Bank Ltd.
2021-01-11
BIREN VAISHNAV
body2021
DigiLaw.ai
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.
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 offences which in all was for a period of two years and six months. Mr.Jani would then invite the attention of the Court to the order in the appeal preferred against the conviction by the respondent No.5 and submit that by the appellate order dated 6.11.2020, only the sentence was suspended and the order of conviction was not stayed.
Mr.Jani would then invite the attention of the Court to the order in the appeal preferred against the conviction by the respondent No.5 and submit that by the appellate order dated 6.11.2020, only the sentence was suspended and the order of conviction was not stayed. It was on this count that the petitioner had extensively lodged objections and filed written submissions which the Returning Officer dealt with in rejecting the objections without assigning any reasons. He would further invite the attention of the Court to the provisions of Rule 23(2)(a) of the Rules of 1982 which provided for scrutiny of nomination papers. He would submit that in accordance with Rule 23(2)(a), it was incumbent upon the Returning Officer to reject the nomination since the respondent No.5 was disqualified for being chosen to fill the seat by or under the Act, Rules or Bye Laws. The bye law 30(ix)(c) specifically providing for a disqualification on conviction would entail rejection of a nomination under rule 23(2)(a). Mr. Jani would submit that the Returning Officer did not deal with any of his submissions and without assigning any reasons, rejected the objections of the petitioner. Mr.Jani invited the attention to the amended portion of the petition, particularly para 2 where he would submit that the State of Gujarat had filed Special Criminal Application No.5779/2020 seeking appropriate orders from the Court to withdraw the prosecution launched against the respondent No.5, however the petition was withdrawn on 13.10.2020. He would submit that the government was out to nip in the bud the prosecution initiated against the respondent No.5 which was faulted and the State Government was compelled to withdraw the petition. Mr. Jani would further submit that even the respondent No.5 was aware of the fact that the conviction was not stayed. It was in these circumstances that he moved an application Exh.25 before the District & Sessions Judge, in his appeal, on 30.12.2020 requesting that since the order of the suspension of sentence has been stayed, and since he is an MLA for six terms, the conviction also may be stayed. This abundantly makes clear that the respondent No.5 was conscious that the order of 6.11.2020 was not a stay of conviction but only a suspension of sentence. On 1.1.2021, the respondent No.5 withdrew the application as not pressed. Mr.
This abundantly makes clear that the respondent No.5 was conscious that the order of 6.11.2020 was not a stay of conviction but only a suspension of sentence. On 1.1.2021, the respondent No.5 withdrew the application as not pressed. Mr. Jani would submit that on the conclusion of a trial, three eventualities occur: one is conviction, then the order of sentence and compensation. What is evident from the facts on hand is that it is only the sentence that is suspended and the conviction is not stayed. He would emphasise by reading the operative portion of the order of the appellate court in support of this submission. Mr. Jani would invite the attention of the Court to the provisions of sec.389 of the Cr.P.C and submit that pending any appeal by a convicted person, the appellate Court for reasons to be recorded by it in writing, order that the execution of the sentence or order be suspended. He would submit that the stay of conviction cannot be taken as a course naturally open on filing of an appeal. In support of his submission, Mr.Jani relied on the decision in the case of Navjot Singh Sidhu v. State of Punjab reported in 2007(2) SCC 574 , he would extensively refer to paras 20, 21 and 22 of the judgment to contend that u/S.389 when an appeal is filed it is only execution of sentence which can be suspended. An order of conviction cannot be suspended or stayed as the same is not capable of being stayed or suspended. He would submit that in order to maintain purity in political arena, bye law 30(ix)(c) of the Bank envisages that any person who is convicted should be disqualified from standing for election. Mr.Jani also relied on the decision in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali reported in 2007(1) SCC 673 to contend that where the execution of the sentence is stayed, the conviction continues to operate and as is evident in the present case, since there is no stay of conviction, the order operates and the respondent No.5 ought to have been declared as uncontested. Mr. Jani would therefore submit that even in the understanding of the respondent No.5, the fact that he moved an application Exh.25 was vocal enough to suggest that the conviction is not stayed. Mr.
Mr. Jani would therefore submit that even in the understanding of the respondent No.5, the fact that he moved an application Exh.25 was vocal enough to suggest that the conviction is not stayed. Mr. Jani would rely on a decision in the case of Zoroastrian Cooperative Housing Society Ltd. v. District Registrar, Cooperative Societies (Urban) reported in 2005(5) SCC 632 to contend that a member cannot contend that bye laws do not bind him. As held in the decision in the case of Zoroastrian (Supra), it cannot be said by a Member that the Bye Laws are not operative and binding. Reliance is also placed on the decision cited at the bar reported in 2013(3) GLR 2682 . Pressing into service Sec.74 of the Act, Mr. Jani would submit that the management of every society shall vest in a committee to be constituted in accordance with the Act, Rules and the Bye laws. Therefore, in order to be eligible to be a member of a committee, especially the managing committee, one needs to satisfy the qualification as prescribed under the bye laws, which the respondent No.5 did not. Attention was also drawn of the Court to the provisions of Sec. 145(F) of the Act to submit that in accordance with the provisions, a person shall be disqualified from being elected as and for being a member of a committee of any specified society if he has been convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years and unless a period of five years has lapsed since his release. He would submit that apart from the fact that the respondent No.5 has to undergo six months' imprisonment for five offences which tantamounts to an imprisonment for two years and six months, the bye laws of the Jamnagar District Cooperative Bank are more stringent with a view to instill the confidence and maintain purity in the field of cooperative societies to provide a higher level of disqualification. Mr. Jani would also submit that if Sec.145(F)(1A)(ii) is read, it is open for the society to have provisions in addition to and not in derogation of any other provisions for disqualification contained in the Act and, therefore the bye law in question is binding to the respondent No.5 and the election officer was clearly in error in rejecting the objections of the petitioner.
Even by inviting attention to Rule 82 of the Rules of 1982, Mr. Jani would submit that a person who was disqualified to be chosen to fill the seat could not have been nominated to contest the election. 4. Mr.Mihir Thakore, learned Senior Counsel has appeared on behalf of the respondent No.5. He made the following submissions: Mr. Thakore invited the attention of the Court to the order of conviction and would submit that when the order of the JMFC is read, it is six months simple imprisonment to run concurrently for the five offences for which the respondent No.5 was convicted. Once the sentence was to run concurrently, the upper limit was six months. It was only this aspect that became vital in the nature of scrutiny that the Returning Officer had to undertake in accordance with the summary inquiry envisaged under Rule 23. Mr. Thakore would further submit that the bye law which provides for a disqualification cannot run counter to the statutory provisions of the Act and the Rules. Sec.145(F) provides that the conviction has to be for a period of not less than two years to invite a disqualification whereas in this case, it was only for a period of six months. The bye law therefore cannot be pressed into service as compared to the provisions of Section145 (F). Rebutting the submission of Mr.Jani with regard to the provisions of sec.145(F)(1A)(ii), Mr. Thakore would submit that the addition provided by this sub clause is only in addition to the provisions of default as provided in sub clauses (a) to (d) of sub section 1(A) and cannot mean for an addition to a disqualification by a bye law. The bye laws cannot override the provisions of the Act. In support of this submission, Mr.Thakore relied on the decision in the case of Rajkot District Cooperative Bank Limited v. State of Gujarat reported in 2015(13) SCC 401 . Mr. Thakore inviting the attention to rule 23 of the Rules would submit that what was envisaged by the Returning Officer was an inquiry of a summary nature.
In support of this submission, Mr.Thakore relied on the decision in the case of Rajkot District Cooperative Bank Limited v. State of Gujarat reported in 2015(13) SCC 401 . Mr. Thakore inviting the attention to rule 23 of the Rules would submit that what was envisaged by the Returning Officer was an inquiry of a summary nature. He invited the attention of the Court to the decision of this Court in the case of Arvinbhai Singabhai Gamit v. Election Officer and Deputy Collector reported in 2012(3) GLH 81 to submit that the inquiry envisaged was that of a summary nature and also in support of his submission that there is an express provision of Sec.145(F) which prescribes for disqualification for being a member of the committee, the Court held that there cannot be a disqualification by way of an additional ground in the bye laws. Inviting the attention of the Court to the order of Returning Officer, he would justify the order of rejecting the petitioner's objection on the ground that what the Returning Officer had done was to carry out a summary inquiry in accordance with rule 23 of the Rules and such an exercise of power cannot be said to be arbitrary by the Returning Officer. What the Returning Officer had to see was the bye law and the section and the statutory rule providing for disqualification. It was not open for him to undertake the nitty-gritties of interpreting the order of the criminal court in interpreting whether the order of the JMFC or that of the Appellate Court meant whether there was suspension of sentence or stay of conviction in case of a nature of summary inquiry that was not envisaged for the Returning Officer to do. The order therefore cannot be said to be in ex facie violation of the Act and the writ therefore was not maintainable. Inviting the attention of the Court to the decisions relied upon by Mr. Jani especially in the case of Ravikant (Supra), Mr. Thakore would rely on the relevant paragraphs in the factual details of the judgment to indicate that these were decisions rendered in election petitions.
Inviting the attention of the Court to the decisions relied upon by Mr. Jani especially in the case of Ravikant (Supra), Mr. Thakore would rely on the relevant paragraphs in the factual details of the judgment to indicate that these were decisions rendered in election petitions. Even in the case of in the recent decision of the Supreme Court, in the case of Saritha S. Nair v. Hibi Eden in Special Leave Petition (Civil) No.10678 of 2020, he would submit that these were orders passed challenging orders of the relevant High Court in an election petition. The question whether u/s. 389 of the CR.P.C whether conviction can be stayed or not stayed is not within domain of the election officer to inquire into. Mr. Thakore relied on the decision in the case of Rama Narang v. Ramesh Narang reported in 1995(2) SCC 513 , para 19 thereof to submit that the scope of sec.389 of the Cr.P.C was discussed and the Court through evolving the judicial trend came to the conclusion that in cases convictions can or cannot be stayed, however, in that case, the disqualification was in context of a Managing Director of a Company and it was not a disqualification at a pre-election stage. Mr.Thakore would also rely on the decision of Supreme Court in the case of Lok Prahari through its General Secretary v. Election Commission of India reported in 2018(18) SCC 114 to submit that these were all decisions in context of election petitions and therefore it was not the stage at hand where this Court in a petition under Article 226 of the Constitution of India should interject elections which were at an advanced stage. He would submit that the elections are now due on 13.1.2021 and, therefore, finding support from the decision of Ravjibhai Bhikhabhai Patel v. Chief Officer, Bilimora Nagar Palika reported in 1982 (1) GLR 611 and especially relying on para 10 thereof, he would submit that it was certainly not a case where a writ petition under Article 226 ought to be entertained. Mr. Thakore would also relied on the decision of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance reported in 2004(3) GLR 2718 to submit when the elections are in an advanced stage, looking to the very nature of the time schedule, they should not be interjected at this stage. Mr.
Mr. Thakore would also relied on the decision of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing and Rural Finance reported in 2004(3) GLR 2718 to submit when the elections are in an advanced stage, looking to the very nature of the time schedule, they should not be interjected at this stage. Mr. Thakore would also rely on the provisions of sec.145(U) of the Act read with rule 82 of the Rules, 1982 and submit that an Election Petition is an efficacious and a speedy remedy. Inviting essentially to rule 82 which provides for grounds for declaring an election void, he would submit that one of the grounds on which the tribunal can interject in an election petition after the elections when the elections has been materially effected by the improper acceptance of the nomination. That is the case of the present petitioner and, therefore, the only remedy that is available is that of an Election Petition. Mr.Thakore would invite the attention of the Court to the contents of the affidavit-in-reply filed on behalf of the respondent No.4 especially to page 63. It was specifically stated by him that he was constrained to file an appeal as he is a member of the Gujarat Legislative Assembly and if the appeal is not entertained and conviction stayed, he would entail disqualification. When this is read in context of the appellate order, the conviction was stayed and, therefore, even otherwise there was no merit in the contentions of the petitioner. 5. Ms.Manisha L. Shah, learned Government Pleader appearing with Ms.Aishvarya Gupta, learned AGP would also refer to rule 23 and submit that what was envisaged under Rule 23 in accordance with the decision in the case of Arvindbhai S. Gamit (Supra) was a nature of a summary inquiry. Inviting the attention to the orders of the Returning Officer, she would submit that the Returning Officer in context of the bye law had taken a decision in the nature of inquiry that he was supposed to conduct. She would also submit in support of the submissions rendered by Mr. Thakore that sec.145(F)(1A)(ii) cannot be read to mean addition to the disqualification by bye laws but what was meant was disqualifications in addition to the default of disqualifications and qualifications akin thereto.
She would also submit in support of the submissions rendered by Mr. Thakore that sec.145(F)(1A)(ii) cannot be read to mean addition to the disqualification by bye laws but what was meant was disqualifications in addition to the default of disqualifications and qualifications akin thereto. She would also draw support from the decision in the case of Kanubhai Patel (Supra) and submit that in context of the summary inquiry that was conducted, the order was just and proper. 6. In rejoinder, Mr.Jani would submit that it was incumbent on the Returning Officer to satisfy himself that the nomination was in accordance with the bye laws. Evident it was that though Mr.Thakore contended that the withdrawal of the SCA on 13.10.2020 was because on the very day, the respondent No.5 was convicted, admittedly, it was an attempt u/s.321 of the Cr.P.C to withdraw prosecution. 7. Mr.Jani would submit that it was ironical for the respondent No.5 to contend that the bye law which has been in force for more than 30 years and pursuant to which bye laws the member society continued to be affiliated to the Bank and now turn around to contend the bye law being contrary to the Act and the Rules. 8. Mr. Jani would rely on the decision in the case of Sau. Minaxi Murlidhar Ghodke v. Addl. Commissionier, Nashik Division and others of the Bombay High Court reported in 1997 Mah.L.J.182 and on the decision of the Division Bench of the Bombay High Court in the case of Pandurang Hindurao Patil v. State of Maharashtra and others reported in 1983 MahL.J., 1081 in support of his submission that a writ petition under Article 226 of the Constitution of India is maintainable and that the bye law is binding. It is not open for the respondent No.5 to wriggle out of the bye law only because it is inconvenient to him. He would rely on the decision of the Supreme Court in the case of an educational institution which held that it is always open for a body to prescribe for higher qualifications. On the decision cited by Mr.Thakore in the case of Rajkot District Cooperative Bank Limited (Supra), he would submit that they were in context of demarcation under rule 3(A) of the Rules of 1982.
On the decision cited by Mr.Thakore in the case of Rajkot District Cooperative Bank Limited (Supra), he would submit that they were in context of demarcation under rule 3(A) of the Rules of 1982. As far as the decision in the case of Arvindbhai Gamit (Supra) is concerned, he would submit that in the facts of the case, the same would not be applicable. 9. Having considered the submissions made by the respective counsels, this Court needs to consider whether the order dated 23.12.2020 passed by the Returning Officer, Jamnagar District Bank is just and proper and also whether even otherwise would this Court examine the legality thereof in a writ petition under Article 226 of the Constitution of India. 10. From the perception of the Returning Officer, his role when a nomination is filed and the objections of the kind, as advanced by the petitioner have to be decided, he has to take such a decision by holding a summary inquiry as envisaged under the provisions of Rule 23 of the Rules, 1982. Reading sub rule (2) of Rule 23 makes it abundantly clear that the Returning Officer on such objections that he may receive after such summary inquiry, if he thinks necessary may reject any nomination. One of the grounds that is available to him is that when it appears to him that the candidate is disqualified for being chosen to fill the seat by or under the Act, Rules or Bye-Laws. 11. In the facts on hand, on the nomination being filed, the petitioner, the objector, based on his objections, conveyed to the Returning Officer that, the respondent No.5's nomination paper be rejected as he has been convicted in a criminal case on 13.10.2020 and sentenced to undergo simple imprisonment of 2 years and 6 months. While pressing for the rejection of the nomination, reliance was placed on bye-law 30(ix)(c) of the Bank. 12. Perusal of the written submissions filed before the Returning Officer would indicate (Page 35) that, submissions, as canvassed by Mr.Jani, learned senior counsel, were made before the Returning Officer which in a nutshell were : - That, as per sec.74 of the Act, the management of every society should vest in a committee constituted in accordance with the Act, Rules or bye-laws.
That as per bye-law the respondent was convicted of the offences and made out, on 13.10.2020 and the appellate Court on 6.11.2020 had suspended the sentence and not stayed the conviction. Reliance was placed on the decision on the questions of law vis-a-vis the powers of the Court under Sec.389 of the Code of Criminal Procedure and the concept of the interpretation of the appellate orders i.e. whether the order of 6.11.2020 amounted to suspension of sentence or stay of conviction. 13. The Returning Officer, before him, had the bye-law, in this case, bye-law 30(ix)(c) juxtaposed with the provisions of sec.145F of the Gujarat Cooperative Societies Act, 1961. 14. There can be no dispute as to the principles of law cited at the Bar, as in the decisions in the case of Navjot Sidhu (Supra) and Ravikant Patil (Supra) that a conviction would entail a disqualification. 15. Extensive arguments have been made from the side of the petitioner to submit that the Returning Officer, based on the conduct of the respondent No.5, could have had no alternative but to conclude that the respondent No.5 was convicted hence disqualified. This was because the candidate/respondent No.5 was himself aware of his conviction not being stayed as reflected in the application Exh.25 filed before the Sessions Court on 30.12.2020 and his subsequent act of withdrawing the same. In the opinion of this Court, they were actions, at the hands of the respondent No.5, after the order of the Returning Officer of 23.12.2020 and therefore not relevant in adjudging the order of the Returning Officer. 16. The second submission was that the fact of the state withdrawing SCA No.5779 of 2020 on 13.10.2020 by which its desire to withdraw prosecution against the respondent No.5 failed. This withdrawal, in the submission of Mr.Thakore was, as on that very date, the conviction and sentence were imposed making the pursuit of withdrawal of prosecution fruitless. The Court would not want to express any opinion on this aspect as, while examining the legality of the order of the Returning Officer, the parameters of rule 23(2)(a) of the Rules, 1982 have to be kept in mind. 17. Therefore, before the Returning Officer, while undertaking the scrutiny of nomination, he had several facts before him: The order of 13.10.2020 of conviction and sentence of 6 months each to run concurrently.
17. Therefore, before the Returning Officer, while undertaking the scrutiny of nomination, he had several facts before him: The order of 13.10.2020 of conviction and sentence of 6 months each to run concurrently. The appellate order of 6.11.2020 and the operative part thereof which had the subjective interpretation as canvassed by the petitioner and the respondent No.5. The provisions of Bye-Law 30(ix)(c) of the Bank. The provisions of Section 145F of the Gujarat Cooperative Societies Act, 1961 and the Rules of 1982. 18. Reading the bye-law would suggest that, no member shall be eligible for being elected if he has been convicted of criminal offence or offence involving moral turpitude. The same is reproduced hereinbelow: Bye-law No.30(ix)(c) under Chapter VIII of the bye-laws: 30(1) xxx xxx xxx (ix) No member shall be eligible for being elected as board of directors. (c) If he has been convicted of criminal offence or offence involving moral turpitude” 19. Section 145F(1) and Section 145F(1)(c) would read as under: 145-F 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;” 20. The Returning Officer, would therefore keeping in view the Act, the Rules or the Bye-Law take a call as to whether a candidate would stand disqualified for being chosen to fill the seat. 21.
The Returning Officer, would therefore keeping in view the Act, the Rules or the Bye-Law take a call as to whether a candidate would stand disqualified for being chosen to fill the seat. 21. Assuming that it was open for the Returning Officer, looking to the nature of inquiry envisaged under Rule 23, that the Returning Officer would sit to decide keeping the orders of conviction and appellate order to interpret the fine distinction between stay of conviction and suspension of sentence, can his decision even then be faulted? 22. Addressing, at this stage, the arguments of the respective counsels, first, whether the bye-laws are binding or the provisions of the Act, those arguments, from the side of the petitioner have been made on the basis of its binding nature to the member who has opted to be governed by such bye-laws. Hence, Shri Jani drew support from the decision of the Bombay High Court in the case of Sau. Minaxi Murlidhar Ghodke (Supra) whereas Shri Thakore would submit that when there is a conflict in the bye-law and the provisions of the Act, the Returning Officer would keep in mind the provisions of the Act. 23. In the case on hand, in the nature of a summary inquiry that the Returning Officer was expected to conduct, it would not be within his domain to sit over and interpret the ramifications of the sentence of six months each for the five offences, if defaulted, when the sentence was to run concurrently on a bare reading of the order of conviction. He would then have to fall back on the Act and the provisions thereunder. Reading section 145F(1)(c) would suggest that a disqualification would entail if a candidate is convicted by a Court for any offence and sentenced to imprisonment for not less than two years, unless a period of five years has elapsed such release. The statutory provision of section 145F(1)(c) of the Act prescribes that the period of imprisonment has to be at least 2 years to attract disqualification whereas the byelaws provides that conviction of less than 2 years would attract disqualification. As held in the case of Zoroastrian Cooperative Housing Society Ltd. (supra), it is not the case here that the bye laws are not binding on the respondent no.5.
As held in the case of Zoroastrian Cooperative Housing Society Ltd. (supra), it is not the case here that the bye laws are not binding on the respondent no.5. We need to note that the provisions of Cooperative Societies Act and Rules have overriding effect on the provisions of the bye-laws. In case of conflict between the bye-laws and the provisions of the Act or Rules, the provisions of the Act or Rules will prevail. 24. Keeping the order of conviction and sentence, the bye-law and the provisions of the Act, if the Returning Officer has found that the case of the respondent does not fall within the rigors of Sec.145F(1)(c), the same cannot be faulted. This is particularly keeping in mind the nature of summary inquiry that needed to be conducted. It is well settled legal position that summary inquiry implies a short and quick procedure instead of or as an alternative proof the more elaborate procedure ordinarily adopted prescribed for arriving at a decision. Adjudication upon the question whether the respondent no. 5 has incurred disqualification considering as to whether the conviction of respondent no. 5 is stayed or only sentence is suspended would be entering into the arena of adjudicatory process. 25. I find support to take such a view from the decision in the case of Arvindbhai S. Gamit (Supra) para 6 and 7 thereof are reproduced hereunder: 6. Perusal of the above relevant provisions clearly reveal an integrated scheme providing for a 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. 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. Of course, there are three other formal grounds enumerated in Rule 23 (2) (b), (c) and (d), on which any nomination could be rejected, after affording to the candidate concerned an opportunity to rebut, latest by the next day from the date of scrutiny, the material appearing against him.
Of course, there are three other formal grounds enumerated in Rule 23 (2) (b), (c) and (d), on which any nomination could be rejected, after affording to the candidate concerned an opportunity to rebut, latest by the next day from the date of scrutiny, the material appearing against him. The provisions of Section 145Y authorizes the State Government to make Rules generally to provide for and regulate all or any of the other matters relating to various stages of the elections, but such Rules are expressly required to be consistent with the Act. Therefore, when express provisions of Section 145F prescribe disqualifications for being member of the committee of any specified society, it is questionable whether the State Government can indirectly amend the provisions of Section 145F by prescribing additional grounds of disqualification in the Rules by including disqualifications prescribed in the byelaws of the society. Even as the validity of the Rules and the byelaws is not challenged in the petition, they could be invoked at proper stage when the list of voters is finalized under Rule6, so as to impart full meaning and effect to Rule 23 (7). That leads to the inescapable conclusion that the authority of the Returning Officer in examining nomination papers and deciding all objections is restricted to only making a summary enquiry, 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. As the title and language of Rule 23 clearly suggests, it is the scrutiny of nomination papers and, by no stretch, an adjudication of disqualification of the candidate that falls within statutory duty of the Returning Officer. If he transgresses that limit and enters into the area of accepting or collecting evidence regarding alleged disqualification of a candidate and indulges in exercise of weighing evidence, without any means or power to decide upon genuineness or reliability of any evidence, the minimum requirement of compliance with the principles of natural justice would arise.
If he transgresses that limit and enters into the area of accepting or collecting evidence regarding alleged disqualification of a candidate and indulges in exercise of weighing evidence, without any means or power to decide upon genuineness or reliability of any evidence, the minimum requirement of compliance with the principles of natural justice would arise. However, clear operative words in the Rule being 'summary inquiry' and not an adjudication, the Returning Officer would obviously be required to decide the issue of disqualification or rejection or acceptance of the nomination paper only on the basis of material placed before him; and having regard to the provisions of Rule 5, 6 and 23 (7) it would require authentic and genuine documentary evidence about disqualification of the candidate for rejecting his nomination after giving him an opportunity to rebut such evidence. In order to ensure proper, upright and impartial approach of the officers involved in such elections, specific provisions are made in Chapter XIA of the Act, including the provisions as under in Section 145L. “145 L – OFFICERS ETC. AT ELECTION NOT TO ACT FOR CANDIDATES OR TO INFLUENCE VOTING:- (1) No person who is a Returning Officer or an Assistant Returning Officer or a Presiding or a Polling Officer at an election or an officer or clerk, appointed by the Returning Officer or the Presiding Officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospect of the election of a candidate. (2) ............... (3) Any person who contravenes the provisions of sub section (1) or subsection (2) shall, on conviction, be punished with imprisonment which may extend to six months or with fine or with both. (4) An offence punishable under subsection (3) shall be cognizable offence.” 7. As seen earlier, in the facts of the present case, admittedly respondent No.1, the election officer had accepted the objections from respondent No.2 and sent written enquiry to SUMUL and received their response, even before the date of scrutiny of nomination papers.
(4) An offence punishable under subsection (3) shall be cognizable offence.” 7. As seen earlier, in the facts of the present case, admittedly respondent No.1, the election officer had accepted the objections from respondent No.2 and sent written enquiry to SUMUL and received their response, even before the date of scrutiny of nomination papers. He had also permitted, in clear violation of the provisions of Rule 23 (1), two persons posing as secretary and director of the primary society to attend the scrutiny and allowed production of the alleged original record of that society, for respondent No.2 to substantiate that name of the petitioner did not appear in the monthly payment sheet of the society for the period from 1.6.2011 to 28.2.2012. The monthly payment sheets for a part of the year, even if genuine, may not be conclusive proof of non supply of milk by the petitioner insofar as payments for milk supplied by him were claimed to have been received on his behalf by his son, whose name was reflected against his code number. As recorded in the impugned order and the affidavit of respondent No.1, after some time, the petitioner was shown such record to show his name in the payment sheets; and then it is deposed that the petitioner had failed to produce any document to prove that the record produced by respondent No.2 was not original and genuine, due to which he was left with no alternative but to reject nomination of the petitioner. As against that, it is the specific case of the petitioner that copies of written objections submitted by respondent No.2 were never supplied to the petitioner. Even as authentic certificates issued by his society and SUMUL in favour of the petitioner, annexed to the petition as Annexure D, E and F, clearly reveal that he had supplied milk as required and he was not a defaulter in respect of any outstanding amount, those documents were totally ignored by the Returning Officer. It was held by the Constitution Bench of the Apex Court way back in the year 1954 in Durga Shankar Mehta v. Raghuraj Singh and Others [ AIR 1954 SC 520 ], in the context of similar provisions of the Representation of the People Act, as under: “8. ........................... the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved.
........................... the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. .................. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the material placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer.................................................................. ” It was also observed in a different context in Virindar Kumar Satyawadi v. The State of Punjab [ AIR 1956 SC 153 (1)] that under Section 36 (2) (of the Representation of the People Act), the Returning Officer has to examine the nomination paper and decide all objections which may be made thereto. This power is undoubtedly judicial in character. But in exercising this power, he is authorized to come to a decision “after such summary enquiry, if any, as he thinks necessary”. That means that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case. There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enquiry under Section 36.” The observations made in para 6 would also answer the proposition canvassed by the respective counsels on the binding nature of the bye-law. When the Division Bench has categorically under section 145F prescribed disqualification for being a member of the committee of any specified society, it is questionable whether the State Government can indirectly amend by providing for additional grounds of disqualification in Rule.
When the Division Bench has categorically under section 145F prescribed disqualification for being a member of the committee of any specified society, it is questionable whether the State Government can indirectly amend by providing for additional grounds of disqualification in Rule. By including disqualification in the bye-laws, the Returning Officer cannot transgress the limits in the nature of inquiry under Rule 23 to accept and collect evidence regarding alleged disqualification of a candidate and indulge in the exercise of weighing evidences without means and powers to decide upon genuineness and reliability. The observations of the Supreme Court, in the case of Ravikant Patil (Supra) in para 17 would reflect the mindset of the summary inquiry that a Returning Officer would undertake. “17. Reverting to the present case, we are not called upon to decide the correctness of the order of stay of conviction dated 26.3.2004. All that requires to be noticed is that on the dates of nomination and election, in view of the said order staying conviction, the appellant was not disqualified. The question whether subsequently the conviction was set aside in appeal or whether the matter is in further challenge before this Court is of no relevance for deciding the point in issue.” 26. The 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). 27. The submission that provision of section 145F(1-A)(ii) empowers the society to make provisions in addition to and not in derogation to any other provisions for disqualification are in context of the specific default provisions of section 145F(1A)(a) to (d) and not otherwise. 28. In examining the fact from the perception of the Returning Officer, while deciding to reject the objections of the petitioner, based on what has been discussed hereinabove, it cannot be said that the exercise of power by the Returning Officer was so palpably wrong or arbitrary or ex-facie in violation of the statutory provisions of the Act to make it vulnerable for this Court to exercise powers under Article 226 of the Constitution of India. 29.
29. Even otherwise, what is canvassed by the petitioner is to seek disqualification of the respondent No.5 as a candidate for election to the Jamnagar District Bank. The judgments cited at the bar, in the case of Ravikant Patil (Supra) & Saritha S. Nair would reveal that the question of disqualification was in context of decisions out of election petitions. 30. Even the Division Bench decision of the Bombay High Court in the case of Pandurang Hindurao Patil (Supra) though the Division Bench held that a petition may not be rejected on the ground that such a petition under Article 226 of the Constitution of India does not lie but it also goes on to add that however in a given case whether a Court will entertain a petition and will interfere or not will depend on facts and circumstances of the case. 31. Several decisions have been relied upon by Mr.Thakore in support of his submission that the only remedy that the petitioner can invoke is that of an election petition in accordance with the provisions of Section 145F read with Rule 82 of the Rules 1982. In the facts and circumstances of the present case, the elections are in an advanced stage. The elections are scheduled on 13.1.2021. Extensive arguments were canvassed by the petitioner's and the respondents' counsels on 7.1.2021. Moreover, as discussed in detail hereinabove of the petitioner's stand that the nomination of the respondent No.5 is wrongly accepted, the remedy of an election petition is one which is efficacious keeping the immediate holding of the elections also. Interjecting such elections at this stage would not be in the interest of the election process particularly when there is a speedy remedy of election petition which is available. 32. Accordingly, in view of the above, I find no merits in the petition and the petition deserves to be dismissed and the same is dismissed. Notice is discharged with no order as to costs. The Registry is requested to communicate this order through E-mail/Fax.