BABA SAHEB D PATIL Vs. SHRIPATRAO S BENDRE

JUDGEMENT

(1.) By this writ petition filed under Articles 226 and 227 of the Constitution the petitioner (Babasahed Dayanu Patil of Bhuye, Taluka Karvir, District Kolhapur) is seeking to challenge the legality of the order passed by respondent No. 4 (Commissioner, Poona Division) on 11th August, 1976, whereby the learned Commissioner rejected his request that he be declared to have been elected to the Board of Directors of respondent No. 2 Bank (Kolhapur District Central Co-operative Bank Ltd., Kolhapur).

(2.) A few facts giving rise to this petition may be stated. Respondent No. 2 Bank is a specified society within the meaning of section 73-G of the Maharashtra Co-operative Societies, Act, 1960, the elections to the Board of Directors of which were required to be held through the Collector. It appears that the Board of Directors of respondent No. 2 Bank consisted of 18 directors-17 elected and one nominee of the financing bank. The triennial elections to the board of directors for the three years 1973-74, 1974-75 and 1975-76 were held in the month of November 1973. The last date for filing the nomination papers was 23rd October, 1973 and after scrutiny of the nominations was over the last date for withdrawal of nomination papers was fixed as 1st November, 1973. In all seven candidates had filed their nomination papers, but with the withdrawal of five nomination papers, which was done before 1st November, 1973, only two candidates remained in the field, viz. the petitioner and respondent No. 1 (Shripatrao Shankarrao Bondre). On 20th November, 1973 polling took place and the result thereof was declared on 30th November, 1973. The petitioner secured only 39 votes while respondent No. 1 secured 109 votes, with the result that the respondent No. 1 was duly declared to be elected to the board of directors from constituency No. 1 Gat No. 1, Karvir Taluka Voters Constituency. On 28th January, 1974 by an election petition filed by the petitioner before the Commissioner, Poona Division, respondent No. 1s election was challenged on the ground that respondent No. 1 was a defaulter within the meaning of Rule 58(1) of the Maharashtra Co-operative Societies Rules, 1961 and the petitioner had also sought a further declaration that he himself be declared to have been duly elected at the said election. The Commissioner negatived the contention of the petitioner that respondent No. 1 was a defaulter within the meaning of Rule 58(1) and consequently on 21st November, 1975 the election was dismissed. The petitioner preferred Special Civil Application No. 3671 of 1975 to this Court under Articles 226 and 227 of the Constitution whereby he challenged the aforesaid decision of the Commissioner, Poona Division. On 9th April, 1976 this Court allowed the writ petition filed by the petitioner after recording two findings. In the first place this Court reversed the conclusion of the Commissioner and recorded a finding that respondent No. 1 was a defaulter as contended by the petitioner and as such he had incurred disqualification as a result of which he could not become a member of the board of directors of respondent No. 2. Secondly this Court granted the petitioners further prayer and declared him to have been duly elected to the board of directors of the respondent No. 2 bank. The matter was carried further by respondent No. 1 to the Supreme Court and on 26th April, 1976 the Supreme Court by its order confirmed the finding of this Court as regards the disqualification incurred by respondent No. 1 on the ground that he was a defaulter, but remanded the matter bank to the Commissioner for a proper decision on the further prayer made by the petitioner on the ground that "that High Court in the exercise of its extraordinary jurisdiction under Articles 226 and 227 of the Constitution, should not have proceeded to decide whether the first respondent (before the Supreme Court) should be declared duly elect. The High Court should have sent the matter back to the Divisional Commissioner for the purpose of deciding on the facts of the case whether in view of the setting aside of the election of the appellant the first respondent (the petitioner) should be declared duly elected instead of holding a fresh election". Accordingly that part of the judgment of this Court, which declared the petitioner (first respondent before the Supreme Court) to have been duly elected was set aside by the Supreme Court and the matter was remanded back to the Divisional Commissioner for the purpose of deciding whether on the facts and circumstances of the case there should be a fresh election or the petitioner should be declared duly elected. A direction was also given that it would be for the Divisional Commissioner to decide whether the parties should be allowed to lead fresh evidence in order to enable him to decided this point. When the matter was taken up by the Divisional Commissioner, Poona pursuant to the aforesaid remand order, it appears that no application was made by either of the parties to lead fresh evidence before him, but is must be stated that two of the candidates who had withdrawn their nomination papers made applications for being impleaded as parties to the petition and their request was granted and they are respondent Nos. 5 and 6 before us in the writ petition. These two added parties filed applications before the Divisional Commissioner averring that had they known that respondent No. 1 had incurred the disqualification by reason of being a defaulter within the meaning of Rule 58(1) they would not have withdrawn their candidature and would have contested the elections. The matter was heard by the Divisional Commissioner and on a consideration of the rival submissions that were put before him on either side the Commissioner has recorded a finding that the petitioner had failed to discharge the burden which lay upon him to bring his case within Rule 82(a) of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 (hereinafter referred to as "Elections to Committees Rules, 1971") and as such his request for being declared to have been duly elected to the board of directors of respondent No. 2 bank could not be granted. An alternative prayer was made on behalf of the petitioner before the Commissioner that no fresh elections should be directed to be held in view of the promulgation of the Maharashtra Specified Co-operative Societies (Postponement of Elections due to Emergency) Act, 1975, which prohibited holding of an election to the committee or election to fill any casual vacancy in the committee of any specified society during the period the Act remained in operation. It was also pointed but that the existing term of the directors had been extended from the original period of three years to five years in view of the postponement of elections during the emergency. This alternative prayer made on behalf of the petitioner was granted by the Commissioner by his order dated 11th August, 1976. It is the first finding which has been recorded by the Commissioner in his aforesaid order dated 11th August, 1976 that has been challenged by the petitioner in the present writ petition before us.

(3.) Dr. Naik appearing for the petitioner has contended before us that the decision of the Commissioner rejecting his first prayer to have himself being declared as duly elected to the board of directors of respondent No. 2 bank is erroneous on the face of the record and contrary to law obtaining on the point, and as such, the same deserves to be quashed. He has urged that the question at issue is covered by the Supreme Court decision in the case of (Vishwanatha v. Konappa) A.I.R. 1969 S.C. 604 where the Supreme Court has clearly taken the view that when there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification and no fresh poll is necessary and that the other candidate must be declared to be duly elected. He has pointed out that though this decision was cited before the Commissioner, the learned Commissioner had erroneously taken the view that the ruling given in that case would not be applicable to the instant case as the instant case was governed by Rule 82(a) of the Elections to Committees Rules, 1971 and the Commissioner was further wrong in taking the view that the petitioner had not been able to make out a case that by eliminating respondent No. 1 from the contest he would in fact have secured a majority of valid votes. In other words, the main contention of Dr. Naik before us was that the facts obtaining in the instant case were almost similar to the facts which obtained in the case which was decided by Supreme Court in Vishwanatha v. Kanappa and that in view of the fact that the relevant provisions of law sections and rules under the Maharashtra Co-operative Societies Act, 1960 are in pari materia the same as are to be found in the relevant provisions contained in the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961 under which the Supreme Court has given its ruling. According to Dr. Naik in the instant case after five contesting candidates had withdrawn their nomination papers only two candidates remained in the field as contesting candidates and since respondent No. 1 has now been conclusively held to have incurred the disqualification by being a defaulter within the meaning of Rule 58(1)(a) the Commissioner should have seen that under Rule 30 of the Elections to Committees Rules, 1971, which is equivalent to section 53 of the Representation of the People Act, no fresh election was called for and as such, the petitioners request for being declared as duly elected to the board of directors of the respondent No. 2 bank ought to have been granted by him. In support of his contention naturally he has strongly relied upon the decision of the Supreme Court in Vishwanaths case.