KRISHNAKANT DURLABHBHAI VORA Vs. MATHURADAS R GANDHI

JUDGEMENT

(1.) THESE two writ petitions arise out of the order passed by the Co-operative Tribunal on August 16, 1991 confirming the decision of the Co-operative Court dated July 19, 1991. The only limited question before me in these writ petition, at the admission stage, is whether respondent No. 1, one of the share holders who has filed the election petition, has got right to inspect the counter-foils of the ballot papers.

(2.) RESPONDENT No. 1 filed a dispute challenging the election of present petitioner who was an elected chairman of respondent No. 13, the Bank also the elections of nine Directors, being respondent Nos. 2 to 10 in the present petition. The elections of the Chairman and the Directors of respondent No. 13, the Bank, were held on April 29, 1991 and the results were declared on April 30, 1991. As per the said results, the petitioner was declared as a Chairman of the Bank and respondent Nos. 2 to 10 were declared as the Directors along with the three other Directors. After filing the aforesaid dispute, respondent No. 1 filed an interim application for the appointment of Receiver/commissioner for taking charge of the ballot-papers and the counter-foils of the ballot papers. In the said application the petitioner also prayed for grant of inspection of the counter-foils of the ballot-papers. The co-operative Court by its decision dated July 19, 1991 appointed one Mr. Denzil DMello, Advocate, as the Court Receiver to take charge of the papers pertaining to the election programme, used and unused ballot-papers, ballot-boxes document recording the election results, counter-foils of the ballot-papers, papers containing specimen signatures of the members and also further directed to seal the said documents and produce them before the Court. In the said order, the trial Court also granted inspection of the counter-foils of the ballot-papers to the disputant. Against this decision of granting respondent No. 1s application, dated July 19, 1991, given by the Co-operative Court No. 1, the petitioners preferred an appeal before the Co-operative Tribunal and the said Tribunal by the decision dated August 16, 1991, confirmed the order passed by the Co-operative Tribunal, present Writ Petition No. 3845 of 1991 is filed by the present petitioner who was elected Chairman of respondent No. 13, the Bank. Out of the nine Directors, against whom the original dispute was filed, eight Directors also preferred an appeal before the Co-operative Tribunal against the order dated July 19, 1991, and by a common judgment, along with the appeal filed by the present petitioner, the Co-operative Tribunal also confirmed the decision given by the trial Court dated July 19, 1991. The said Directors also preferred Writ Petition No. 4077 of 1991, against the order of the Co-operative Tribunal dated August 16, 1991. Since, both these writ petitions, in which the facts and the law points are common and both are filed against the common judgment, I am disposing of both these writ petitions by a common order.

(3.) I have heard the arguments advanced by Mr. Bhimrao N. Naik, the learned Counsel appearing on behalf of the petitioners in Writ Petition No. 3845 of 1991, and also by Dr. B. R. Naik, the learned Counsel appearing on behalf of the petitioners in Writ Petition No. 4077 of 1991. It was contended by the learned Counsel on behalf of the present petitioners that both the lower courts erred in law by allowing inspection of the conterfoils of the ballot papers. It was also contended on behalf of the petitioners that the election is governed by the special law and the principles of the general laws under the Code of Civil Procedure are not applicable in the election dispute, especially where secrecy is to be maintained. According to the petitioners, in order to maintain secrecy so as to see that the identity of the voter is not established, it is desirable that even the counterfoils of the ballot papers should not be allowed for inspection. According to the petitioners, the dispute filed by respondent No. 1 is blissfully vague. There are no specific allegations about the corrupt practice and, therefore, unless respondent No. 1 makes out a prima facie case, respondent No. 1 is not entitled to inspection of the counterfoils of the ballot papers. Allowing such inspection, according to the petitioners, will amount to roving or fishing enquiry and therefore, both the lower courts erred in granting such inspection. To support their contentions, both the learned Counsel appearing on behalf of the petitioner, relied on certain decision of the Supreme Court.