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Babasaheb Dnyanu Patil Vs. Shripatrao Shankarrao Bondre and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 5113 of 1976
Judge
Reported inAIR1978Bom177; 1977MhLJ61
ActsMaharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 - Rules 30 and 82; Co-operative Societies Rules, 1961 - Rules 52 and 58(1); Constitution of India - Articles 226 and 227; Maharashtra Co-operative Societies Act, 1960 - Sections 73-G and 144W; Maharashtra Specified Co-operative Societies (Postponement of Elections due to Emergency) Act, 1975; ;Representation of the People Act, 1951 - Sections 9-A, 53, 84 and 101; Conduct of Election Rules, 1961; Election Law
AppellantBabasaheb Dnyanu Patil
RespondentShripatrao Shankarrao Bondre and ors.
Appellant AdvocateB.R. Naik, Adv.
Respondent AdvocateA.M. Salik, Asstt. Govt. Pleader, ;K.K. Singhvi, ;V.A. Gangal, ;M.V. Paranjpe, ;R.S. More, ;B.R. Patil and ;P.M. Pradhan, Advs.
Excerpt:
the case dealt with election to the board of directors of a bank - only two candidates remained for contesting the election - the returned candidate was disqualified for being a defaulter under rule 58(1)(a) of the maharashtra specified co-operative societies elections to committees rules - the court held that the petitioner was required to establishing the case under rule 82(a) of the rules. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule.....tulzapurkar, ag. c. j.1. by this writ petition filed under arts. 228 and 227 of the constitution the petitioner (babasaheb dnyanu 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. 2bank (kolhapur district central cooperative bank ltd., kolhapur),2. a few facts giving rise to this petition may be stated. respondent no. 2 bank 13 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.....
Judgment:

Tulzapurkar, Ag. C. J.

1. By this writ petition filed under Arts. 228 and 227 of the Constitution the petitioner (Babasaheb Dnyanu 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. 2Bank (Kolhapur District Central Cooperative Bank Ltd., Kolhapur),

2. A few facts giving rise to this petition may be stated. Respondent No. 2 Bank 13 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 Oct. 1973 and after scrutiny of the nominations was over the last date for withdrawal of nomination papers was fixed as 1st Nov. 1973. In all seven candidates had filed their nomination papers, but with the withdrawal of five nomination papers, which was done before 1st Nov. 1973, only two candidates remained in the field, viz. the petitioner and respondent No. 1 (Shripatrao Shankarrao Bondre). On 20th Nov. 1973 polling took place and the result thereof was declared on 30th Nov. 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 Taluk a Voters' Constituency. On 28th Jan. 1974 by an election petition filed by the petitioner before the Commissioner, Poona Division, respondent No. 1's 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 Nov. 1975 the election petition 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 be 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 petitioner's 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 toy 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 back to the Commissioner for a proper decision on the further prayer made by the petitioner on the ground that ''the 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 elected. The High Court should have sent the matter back to the Divisional Commissioner for the purpose of deciding ion 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 decide 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 it 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 out that the existing term of the Directors had been extended from the original period of 3 years to 5 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 hag 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 , 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 52 (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 the Supreme Court 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 petitioner's 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 Vishwanatha's case .

4. On the other hand, Mr. Singhvi for the respondent No. 2 Bank and Mr. Paranjpe for respondent No. 1 (the disqualified candidate) have contended that the decision of the Supreme Court in Vishwanatha's case wag rendered by that Court in the context of the provisions of the Representation of the People Act and the Conduct of Election Rules, 1961 framed thereunder, whereas the instant case is governed by the provisions of the Maharashtra Cooperative Societies Act. 1960, the Maharashtra Co-operative Societies Rules, 1961 and the Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971, and the question at issue will have to be considered in light of the relevant provisions which are applicable thereto. It was further contended by them on behalf of respondent No. 2 Bank and respondent No. 1 respectively that in any case the decision of the Supreme Court in Vishwanatha's case had been pressed into service by the petitioner not merely before the Division Bench of this Court when Special Civil Application No. 3671 of 1975 was argued and decided but also before the Supreme Court when the matter was heard by the Supreme Court and notwithstanding such reliance that was based upon the decision by the petitioner that the Supreme Court had remanded the matter back to the Divisional Commissioner, Poona, expressly for the purpose 'of deciding whether on the facts and circumstances of the case there should be a fresh election or the first respondent (the petitioner) should be declared duly elected or not.' In other words, according to counsel appearing for respondents Nos. 1 and 2 the main facts on which Dr. Naik has been relying for the purpose of obtaining automatic declaration of his client having been duly elected to the Board of Directors of respondent No. 2 Bank were present on record even before the Supreme Court and notwithstanding this position the Supreme Court has remanded the matter back to the Divisional Commissioner for deciding the issue indicated above and according to the learned counsel for the respondents therefore the Supreme Court did not undertake any formality of merely remanding the matter back to the Divisional Commissioner for recording a finding, which according to Dr. Naik, was automatically to follow in view of the Supreme Court decision in Vishwanatha's case. It was urged that unquestionably the Supreme Court wanted the Divisional Commissioner to hold an enquiry after taking evidence that may be led by the parties before him on the question as to whether the petitioner could be said to have made out a case which would fall within Rule 82 (a) of the Elections to Committees Rules, 1971. If the finding that the petitioner was to be declared to have been duly elected to the Board of Directors of respondent No. 2 Bank was to be recorded automatically in view of the ratio of the decision of the Supreme Court in Vishwanatha's case, there would have been no necessity to give direction to the Divisional Commissioner to take fresh evidence as may be led by the parties before him and that too for the purpose of deciding the question as to whether on the facts and circumstances of the case the petitioner should be declared to have been duly elected or a fresh election should be directed to be held. It was urged that if the remand order was thus properly understood, it was clear that no finding on the petitioner's further prayer was to be rendered automatically and according to the counsel for the respondents after the matter went back to the Divisional Commissioner parties did not choose to lead any fresh evidence on the point at issue but certain additional facts were put on record by the added respondents, namely respondents Nos. 5 and 6 who were the candidates who had withdrawn their nominations at the initial stage, and it was on appreciation of the material that was available on record that the Commissioner had recorded his finding that the petitioner had failed to establish that in fact he (the petitioner) had received a majority of valid votes which was required to be established under Rule 82 (a). It was also contended on their behalf that unless this finding could be regarded as perverse or based on extraneous or irrelevant material or based on no material at all, it was not liable to be interfered with by this Court in exercise of its extraordinary powers under Articles 226 and 227 of the Constitution. Counsel for the respondents, therefore, urged that the writ petition was liable to be dismissed.

5. At the outset we would like to deal with the decision of the Supreme Court in Vishwanatha's case reported in AIR 1669 SC 604 on which strong reliance was placed by Dr. Naik. That was also a case dealing with an election dispute under the Representation of the People Act, 1951 and out of seven candidates who filed their nomination papers for election five had withdrawn their candidature and the two rival contesting candidates, namely, Nadgauda and Vishwanathe Reddy, were the only candidates who had remained in the field. Nomination of Vishwanathe Reddy was challenged before the Returning Officer on the plea that Vishwanatha Reddy was disqualified by virtue of Section 9-A of the Representation of the People Act from standing as a candidate for election to the Mysore State Legislative Assembly, but that objection was overruled and hig nomination was accepted. Vishwanathe Reddy secured at the poll 4,000 more votes than Nadgouda and was declared elected. Nadgouda filed an election petition before the High Court of Mysore for an order setting aside the election of Vishwanathe Reddy on the ground that the latter was disqualified from standing as a candidate for election and also for an order declaring him (Nadgouda) to have been duly elected. The High Court rejected the petition, but in appeal the Supreme Court held that at the date, of nomination Vishwanathe Reddy was disqualified from standing as a candidate and on 19th July 1968 passed an order that the election of Vishwanathe Reddy was declared void; that in that view of the matter the votes cast in favour of Vishwanathe Reddy be treated as thrown away and as there was no other contesting candidate the election petitioner (Nadgouda) was declared to have been elected to the seat from Vadgiri constituency. Vishwanathe Reddy then applied for review of the judgment and claimed, relying upon the decision of the Supreme Court in Keshav Laxman Borkar v. Dr. Devrao Laxman Anande, : [1960]1SCR902 that in the circumstances of the case no order declaring Nadgouda elected could be made by the Court and it was in this review petition that the Court considered the question whether it could on the finding recorded about the disqualification of Vishwanathe Reddy, declare Nadgouda as duly elected to the Mysore Legislative Assembly. The question was considered by the Supreme Court having regard to the provisions of Sections 53, 84 and 101 of the Representation of the People Act and disapproving the earlier view expressed in Keshav Laxman Borkar's case the Supreme Court held that when there were only two contesting candidates, and one of them was under a statutory disqualification, votes cast in favour of the disqualified candidate could be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification and that no fresh poll was necessary, and having regard to the provisions of Section 53 of the said Act the Court held that if the number of candidates validly nominated was equal to the number of seats to be filled, no poll was necessary and that where by an erroneous order of the Returning Officer poll was held which, but for that order, was not necessary, the Court would be justified in declaring those contesting candidates elected, who but for the order, would have been declared elected. Strong reliance was placed by Dr. Naik on the observations made by the Supreme Court in paras 11 and 12 of the judgment as follows : --

'11. The cases decided by the Courts in the United Kingdom appear to have proceeded upon some general rule of election law that the votes cast in favour of a person who is found disqualified for election may be regarded as thrown away only if the voters had notice before the poll of the disqualification of the candidate.

12. But in our judgment the rule which has prevailed in the British Courts for a long time has no application in our country. Section 53 of the Representation of the People Act renders a poll necessary only if there are more candidates contesting the election than the number of seats contested. If the number of candidates validly nominated is equal to the number of seats to be filled, no poll is necessary. Where by an erroneous order of the Returning Officer poll is held, which, but for that order, was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for the order, would have been declared elected. The rule enunciated by the Courts in the United Kingdom has only the merit of antiquity. But the rule cannot be extended to the trial of disputes under our election law, for it is not consistent with our statute law, and in any case the conditions prevailing in our country, do not justify the application of that rule. If the rule is applied in our country, the provisions of Section 84 read with Section 101(a) would practicallybe nugatory. Apart from the immense cost of intimating each voter in the vast electorate in the constituencies the rule that a defeated candidate may be declared elected only if he pleads and proves that the voters had notice of the disqualification would render the exception in the context of prevailing illiteracy and ignorance of large sections of the electorate in our country, a dead letter. A very large percentage of the electorate in our country is, unfortunately illiterate and sections thereof not infrequently speak a language different from the language of the majority. It would be well-high impossible to give information of the disqualification of a candidate in a medium which the illiterate electors understand. We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the returning officer as validly nominated but who is in truth disqualified, could still be treated as valid votes for the purposes of determining whether a fresh election should be held. 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. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.' Relying on the aforesaid decision Dr. Naik contended before us that the provisions of Sections 53, 84 and 101 of the Representation of the People Act 1951 were almost similar to the relevant provisions which are to be found in the Maharashtra Co-operative Societies Act. 1960, the Maharashtra Co-operative Societies Rules, 1961 and the Maharashtra Specified Cooperative Societies Elections to Committees Rules 1971. He pointed out that the provision equivalent to Section 53 of the Representation of the people Act was to be found in Rule 30 of the Elections to Committees Rules 1971; that the provision equivalent to section 84 of the Representation of the People Act was to be found in section 144W of the Maharashtra Cooperative Societies Act, 1960 while the provision equivalent to Section 101 of the Representation of the People Act was to be found in Rule 82 of the Elections to Committees Rules, 1971, and according to him since the language of both the sets of provisions is almost identical there is no reason why the ratio of the Supreme Court decision should not apply to the facts of the instant case, especially when admittedly in the instant case after the withdrawal of nomination papers by five candidates there remained only two contesting candidates in the field, namely, the petitioner and respondent No. 1. He urged that since respondent No. 1 was found to have incurred the disqualification by reason of being a defaulter within the meaning of Rule 58 (1) (a) the only other candidate who remained in the field was the petitioner and following the decision of the Supreme Court in Vishwanatha's case the votes that were cast in favour of respondent No. 1 who was the disqualified candidate should have been regarded as votes thrown away and the Commissioner ought to have held that no fresh election was necessary and ought to have declared the petitioner to have been duly elected to the board of directors of respondent No. 2.

6. There is undoubtedly considerable force in this contention of Dr. Naik, but it is not possible to lose sight of the fact that the ratio of the Supreme Court decision in Vishwanatha's case was pressed into service by the petitioner not merely before the Division Bench of this Court when Special Civil Application No. 3671 of 1975 was argued, but also before the Supreme Court when the matter was heard there and the remand order in question was passed by the Supreme Court. This latter aspect is confirmed by the averments which are to be found in paragraph 9 of the writ petition preferred by the petitioner to this Court and notwithstanding such reliance that was placed upon the said Supreme Court decision, the Supreme Court remanded the matter back to the Divisional Commissioner for deciding the particular issue after directing the Commissioner to take fresh evidence if led by the parties before him to enable him to decide the issue. In our view, it is not possible to accept the position that it was by way of any idle formality that the Supreme Court had remanded the matter back to the Divisional Commissioner -- just for the purpose of recording a finding, which according to Dr. Naik, automatically followed on the admitted facts of the case which were already obtained on the record. If that were so, the parties would not have been given the liberty to lead fresh evidence on the issue that was remanded and what is more, the issue remanded was, whether on the facts and circumstances of the case fresh poll should be directed to be held, or whether the petitioner should have been declared to have been duly elected to the board of directors of respondent No. 2, In other words, automatic recording of a finding in favour of the petitioner was really out of question. That being the position, we have to consider whether on the merits the Commissioner's finding, that the petitioner had failed to make out a case under Rule 82 (a), is liable to be interfered with in exercise of writ jurisdiction or not.

7. It is true that while coming to the conclusion that when there were only two contesting candidates, and one of them was under a statutory disqualification, the Supreme Court took the view that the votes cast in favour of the disqualified candidate could be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification and no fresh poll was necessary, the Court has proceeded on the basis that once in truth it was found that the returned candidate had incurred a disqualification votes that were east in his favour could never be regarded as valid votes for the purpose of determining whether a fresh election should be held or not and this aspect of the matter becomes clear from the following observations made by the Supreme Court in para 12 of the judgment:--

'We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the returning officer as validly nominated but who is in truth disqualified, could still be treated as valid votes, for the purposes of determining whether a fresh election should be held. 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.'

What the position was with regard to other material facts, particularly in the matter of withdrawal of candidature of certain candidates and the reasons or grounds of their withdrawal, nothing appears clear from the judgment in the case, and we merely find a statement of fact to the effect that out of seven candidates who filed their nomination papers for election five candidates withdrew their candidature and Nadgouda and Vishwanatha Reddy were the only candidates who remained in the field. Under what circumstances the other candidates has withdrawn their nomination papers, what impact such withdrawal would have had on the issue as to whether the election petitioner could be said to have received a majority of valid votes, nothing appears in the judgment and in our view, the position would be different it material is available on record which would throw light on these aspects of the matter, as is the case in the instant ease before us. As stated above, when the matter was remanded back to the Divisional Commissioner, it is true that neither of the parties led fresh evidence though opportunity was given to them, but that, if at all, would be a factor against the petitioner, for obviously the burden of making out a case under Rule 82 (a) was upon him. Respondents Nos. 5 and, 6 applied that they should be joined as party respondents to the election petition: and their applications were granted overruling the objection taken to such joinder by the petitioner. In the applications which were made by them for joining as party respondents categorical averments were made by each one of them to the effect that had each one of them known at the time of scrutiny that respondent No. 1 had incurred a disqualification and could not contest the election, then he would not have withdrawn his candidature. In fact, on behalf of the petitioner the only contention that was urged was that in view of the decision of the Supreme Court in Vishwanatha's case since there were only two contesting candidates and one of them had incurred a disqualification votes cast in favour of the disqualified candidate should be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification or not and therefore there was no question of holding a fresh election and the petitioner should have been declared to have been duly elected. On behalf of respondent No. 1 the contention was urged that under Rule 82 of the Elections to Committees Rules 1971 the Commissioner, had to form an opinion and to come to a conclusion that in fact the petitioner had received a majority of valid votes which the petitioner had failed to establish and that since, no evidence was led on his behalf the onus which lay upon him to prove that fact had not been discharged. It does appear that the Commissioner has taken the view that there was no evidence to show that the petitioner would have secured a majority of valid votes if respondent No. 1 had been eliminated from the contest and this view seems to be based on the fact that admittedly there were originally seven candidates who had expressed their inclination to be in the contest and there is nothing on the record to show that all these candidates would have decided to withdraw if during the scrutiny the nominations of some of the candidates had been rejected. It is not possible to say that the aforesaid conclusion which the Divisional Commissioner hag reached, that the petitioner has failed to make out a case under Rule 82 (a) and has failed to discharge the burden which lay on him, is either perverse or based on any extraneous or irrelevant considerations or based on no evidence or no material at all. It cannot be disputed that he burden of establishing the case under Rule 82 (a) obviously lay upon the petitioner and for that purpose, when the matter was remanded back to the Divisional Commissioner, he could have availed himself of the opportunity of leading fresh evidence, which had been given to rim and he could have led such evidence as he thought proper to establish his case under Rule 82 (a), but no evidence was led by him whatsoever. Admittedly five candidates had withdrawn their candidature and from the material on record it could be said that two of the candidates who had withdrawn their candidature would not have done so had they known that respondent No. 1 was going to be disqualified on the ground that he Was a defaulter within the meaning of Rule 58 (1). If these facts were on record, the petitioner could not be said to have made out a case that in fact he had received a majority of valid votes in order to support his claim to a declaration that he should be declared to have been duly elected to the board of directors of respondent No. 2. What impact the non-withdrawal of the. candidature of respondents Nos. 5 and 6 would have had on the voting that was done on the polling day it is difficult to imagine, and it is not possible to gay positively that even if they had not withdrawn their candidature and had contested the election the petitioner would have secured a majority of valid votes. It may appear to be a rather difficult burden on the petitioner but all the same since the Legislature had cast the burden upon the petitioner it is up to him to establish his case under Rule 82 (a) and since he has failed to establish his case, in our view, the finding of the Commissioner in that behalf cannot be interfered with by this Court.

8. In the result, the petition fails and the Rule is discharged with costs.

9. Rule discharged.


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