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2022 DIGILAW 1515 (BOM)

Ramesh Edathadan v. State of Goa

2022-06-16

SANDEEP K.SHINDE

body2022
JUDGMENT 1. Heard Mr. V. A. Lawande and Mr. P. Redkar for the Petitioners, Mr. Manish Salkar, Government Advocate for the Respondent-State and Mr. Shivan Desai and Mr. A. D. Bhobe, for the intervenors. 2. In this Petition, the challenge is to the order, rejecting Petitioners' nomination for election to Board of Directors of the Goa State Co-operative Milk Producers Union Limited (Union, for short). 3. The briefly stated facts of the case are that the Petitioner no.1 is the Chairman and Member of Petitioner no.2-St. Andre Milk Producers Co-operative Society Limited. The Petitioner no.1 filed his nomination with the Respondent no.2 (Returning Officer) with all the required documents including the resolution of the Petitioner no.2, authorizing him to represent with a declaration that no other member is representing the Society of the Board. 4. The Returning Officer in the course of scrutiny of the nominations in terms of Rule 69(5) of the Goa Co-operative Societies Rules 2003, sought from the Petitioner no.1 his say as regards his eligibility in terms of Bye-law no. 20.1.6, to contest the elections, inasmuch as the Returning officer was of the view that the Petitioner was not satisfying Rule of said Bye-law, which reads as under : "20.1.6 - has supplied milk to the Union for more than 270 days in both the shifts in the preceding year except for the Society having bulk milk cooler facility. 5. The Bye-law 20 underlines the qualification for representative of ordinary member for contesting elections of the Board. 6. Mr. Lawande, learned Counsel for the Petitioner submitted that, representative member of the Society, shall be eligible for contesting elections only, if the Society he represents, had supplied milk to Union during preceding year for more than 270 days. Mr. Lawande submitted "preceding year, herein was 2021-22 and not a year anterior thereto." Submission is that, in the preceding year i.e. 2021-22, Society had supplied 1,02,924 litres milk to Union in 280 days. To support the submissions, Mr. Lawande relied on milk supply data made available by Goa State Milk Cooperative Producers Union Limited which is at page no. 58 of the paper-book. Mr. Lawande submitted that the Returning Officer while rejecting the nomination had taken into account data of milk supplied in the year preceding the previous year i.e. 2020-21, which, according to Mr. Lawande, was patently incorrect. 58 of the paper-book. Mr. Lawande submitted that the Returning Officer while rejecting the nomination had taken into account data of milk supplied in the year preceding the previous year i.e. 2020-21, which, according to Mr. Lawande, was patently incorrect. To put it differently, it is Petitioners' case that in terms of Bye-law no. 20.1.6, Returning Officer could not have taken into account facts and figures relating to supply made during 2020-21. It is therefore argued, that mistake committed by Returning Officer, being apparent on record and since it does not involve disputed facts, reconsideration of a decision by the Returning Officer would not interrupt or obstruct or delay the progress of election process. Mr. Lawande, would therefore, submit that although the election process has begun, the Court in consideration of peculiar facts of the case, may interfere with the election process, by directing the Returning Officer to reconsider the decision within time bound period, in view of the data of milk supply now being made available by the Union. Mr. Lawande, nextly submitted that, reconsideration of the decision by the Returning Officer, would neither affect the election process nor it would cause prejudice to candidates, who are contesting the elections in question. 7. Mr. Lawande would rely on the judgment in the case of Ghanshyam Tiwari & anr. vs. State of MP, 2010(3) M.P.L.J. to contend that in the compelling circumstances, interference in the election process is justifiable. Mr. Lawande would also rely on Rule 62 of the said Rules to submit that the election program declared under Rule 61 can be modified in the public interest or in any unavoidable circumstances. 8. Mr. Salkar, learned Counsel appearing for the State would concede, to state that Returning Officer shall reconsider a decision in view of the data of milk supplied, now made available by the Union. 9. Mr. Desai and Mr. Bhobe learned Counsel appearing for the Intervenors, would, oppose the Petition and contend that, once process of election had started and particularly when Petitioner has alternate efficacious remedy of raising dispute in terms of Sec. 83 of the Goa Cooperative Society Act, 2002, Petitioner cannot seek to recall the election process. In support, Counsel would rely on the judgments of the Division Bench in the case of Rajkumar Shankar Desai & Ors. vs. Registrar of Co-op Societies, Dept. In support, Counsel would rely on the judgments of the Division Bench in the case of Rajkumar Shankar Desai & Ors. vs. Registrar of Co-op Societies, Dept. of Co-operation & Ors.2020 (2) ALL MR 702 ; Vikas Vishwanath Prabhu vs. Co-operative Officer & Returning Officer for Goa State Co-operating Bank Limited and Narayan Mandrekar & ors. vs. The Registrar of Cooperative Societies Dept,. Of Co-operation, Govt. of Goa & Ors.WP Nos. 789, 790, 791 & 834 of 2021 . 10. Next contention of Mr. Dessai and Mr. Bhobe, learned Counsel for the Intervenors, is that the Petition suffers from non joinder of necessary parties and therefore on this ground alone, the Petition be rejected. In support of this contention, Counsel would rely on judgment of Division Bench of this Court in the case of Augustino Mascarenhas vs. State of Goa & Ors.WP 2 of 2012 11. Having considered the rival contentions and upon a survey of the judgments submitted by the respective Counsel, two questions fall for my consideration : 1. Would it be appropriate to entertain the Petition who seeks to recall the election process particularly when the Petitioner has alternate and efficacious remedy of raising dispute in terms of Sec. 83 of the said Act ? 2. Whether petition suffers from non joinder of the parties ? 12. The Apex Court in the case of Shaji K. Joseph vs. Vishwanath & Ors., AIR 2016 SC 1094 has held that even after concluding, that respondent no.1 had made a prima facie case in context of rejection of his nomination paper, disapproved the view taken by the High Court interfering with the election process after the same had progressed. The ratio in the case of Shaji K. Joseph (supra) squarely applies to the facts of the case in hand. Herein, apparently the Returning Officer while rejecting the nomination of the Petitioner no.1, relied on the data of milk supplied during the year 2020-21 which was preceding the previous year. The ratio in the case of Shaji K. Joseph (supra) squarely applies to the facts of the case in hand. Herein, apparently the Returning Officer while rejecting the nomination of the Petitioner no.1, relied on the data of milk supplied during the year 2020-21 which was preceding the previous year. Therefore, although a prima facie case has been made out in context of rejection of his nomination paper, in terms of the ratio laid down in Shaji K. Joseph (supra), I am not inclined to entertain the Petition and particularly when the Petitioner has alternate and efficacious remedy of raising the dispute in terms of Sec. 83 of the said Act as, has been held by the Division Bench in the case of Rajkumar Shankar Desai & Ors. (supra). In paragraph 18, the Division Bench has held that the provisions of Sec. 83 of the said Act, are quite wide and would encompass all disputes relating election to the co-operative Society which would obviously include disputes relating to improper acceptance or rejection of the nomination papers or for that matters, improper preparation of final nomination list. Whereas, judgment of Madhya Pradesh High Court in the case of Ghanshyam Tiwari & anr. vs. State of M. P. (supra), relied on by Mr. Lawande, learned Counsel for the Petitioner, the facts were that, the Returning Officer was not present in the office of the Society and he had rejected the nomination papers at the residence on the instructions of Mr. Tiwari who was member of BJP, then ruling party. In those exceptional circumstances, the Court interfered with the election process. However, no such exceptional case has been made out for interfering with the election process which has begun. For all these reasons, the first question is answered in negative. 13. Insofar as second question is concerned, Counsel for the Intervenors have relied on the judgment of the Division Bench of this Court in the case of Augustino Mascarenhas (supra). In the said case, there were 26 contesting candidates for election to the Board of the Society. The election was scheduled to take place on 15/1/2012. The nomination of the Petitioner was rejected. The order rejecting the nomination was challenged in the Writ Petition without impleading the 26 candidates. In the said case, there were 26 contesting candidates for election to the Board of the Society. The election was scheduled to take place on 15/1/2012. The nomination of the Petitioner was rejected. The order rejecting the nomination was challenged in the Writ Petition without impleading the 26 candidates. The Division Bench in the said judgment has held that "may be that the Society is only a proper party but as far as 26 candidates are concerned, in our considered opinion, they all were necessary parties. This is because they are contesting the elections under the belief that the competition is amongst 26 candidates and accordingly they might have planned their strategy of campaign. If the petition is allowed and even if the interim reliefs as prayed for are granted, then there would naturally be one more candidate in the field and the other 26 candidates would suffer competition from him." Yet, Mr. Lawande would argue that he may be permitted to implead the candidates contesting the elections as a party-respondents and till then, the election program may be suitably modified. The contention of Mr. Lawande is rejected in view of the judgment of the Apex Court in Shaji Joseph (supra) wherein although prima facie case was made out in context of the rejection of the nomination, the Apex Court disapproved the view taken by the High Court interfering with the election process after the same had progressed. Even otherwise, the elections of the Union are scheduled to be held on 19/6/2022. 14. In consideration of the facts of the case and for the reasons stated above, the Petition deserves no consideration. It is dismissed. 15. All interim applications are disposed of accordingly.