M.N. Chandurkar, Ag. C.J.
1. This petition is directed against the order of the Additional Commissioner, Nasik Division, in an Election Petition under section 144-T of the Maharashtra Co-operative Societies Act, 1960 which was filed by respondent No. 5 challenging the election of the present petitioner as members of the Committee of respondent No. 1 which is the Nasik Merchants Co-operative Bank Limited, Nasik.
2. It is not in dispute that respondent No. 1 Bank is a Specified Society governed by the provisions of Chapter XI-A of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as `the Act'). The respondent No. 1 was declared as a specified society under section 73(G) of the Act in or about May 1981. The Bye-laws of the Bank provided that the Board of Directors of the Bank would consist of 15 members, out of which one member was to be co-opted from the financing bank i.e. Nasik District Central Co-operative Bank. The Collector, Nasik, respondent No. 6 had declared the programme of election on 29-10-1981 for the election of 14 Directors for the years 1981-82 to 1985-86. This election was contested by 47 candidates. The contest appears to be mainly between two panels. The petitioners belong to one panel and respondents Nos. 2 to 4 belong to another panel. There were 19 individual contestants. As a result of the counting the 11 petitioners and respondents Nos. 2 to 4 Nos. 2 to 4 were declared elected by the Collector, Nasik on 14-12-1981.
3. It is necessary at this stage to make a reference to the provisions of section 73-B of the Act. That section reads as follows :
'73-B. On the Committee of such Society or class of societies as the State Government may, by general or special order, direct, two seats shall be reserved, one for the members who belong to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members who have been granted loans from the Society of an amount not exceeding Rs. 200/- during the year immediately preceding. If no such persons are elected, or appointed, the committee shall co-opt the required number of members on the committee from amongst the persons entitled to such representation.'
The Explanation which declared that for the purpose of section 73-B the expression `Schedule Castes' includes `Nav-Boudhas' and the expression `Scheduled Tribes' includes `denitrified Tribes and Nomadic Tribes' is not relevant for our purpose.
4. Admittedly the Bank is one of the societies to which section 73-B of the Act applies. Under that provision two seats on the committee are to be reserved, out of which one is to be reserved for the members who belong to the Scheduled Castes or Scheduled Tribes and the other for weaker section of the members who have been granted loans from the society of an amount not exceeding Rs. 200/- during the year immediately preceding. Under section 73-B if no person of the above description is elected or appointed, the Committee has to co-opt the required number of members on the Committee from amongst the persons entitled to such representation.
5. Now, admittedly no person belonging to the Scheduled Castes or Scheduled Tribes or denitrified Tribes or weaker section of the members was elected on 14-12-1981. After the first meeting of the elected Directors was held on 28-12-1981, petitioner No. 1 was elected as the Director of respondent No. 1-Bank and petitioner No. 2 was elected as Vice-Chairman. The meeting of the Board of Directors was to be held on 16-1-1982 for which the agenda was published on 11-1-1982. One of the items on the agenda for the meeting of 16-1-1982 was the co-option of the Directors from amongst the members belonging to the Scheduled Castes and Scheduled Tribes as well as from amongst economically backward members.
6. However, before this meeting was held, respondent No. 5 filed an election petition under section 144-T of the Act before the Additional Commissioner, Nasik Division, Nasik-respondent No. 8. Respondent No. 5 claimed to be a member belonging to the Scheduled Castes. The election of the petitioner was challenged mainly on the ground that the Bank had not made any reservation of seats as contemplated by section 73-B of the Act and that the Collector while declaring the programme of election did not declare the election for the reserved constituency and respondent No. 5 was, therefore, deprived of the opportunity of contesting the election. The election was thus challenged as being void ab initio. An injunction was also sought restraining the petitioner from working on the Board of Directors.
7. The Additional Commissioner made an order on 15-1-1982 restraining the elected Board of Directors from co-opting any members of the society under section 73-B of the Act. Finally when the election petition itself was disposed of, the Additional Commissioner took a view that the election suffered from non-compliance of the mandatory provisions of section 73-B of the Act and the Rules relevant thereto and the result of the election has been materially affected due to the said non-compliance. The Additional Commissioner over-ruled the contention of the present petitioners that the election petition was not maintainable. The Additional Commissioner further held that the bye-laws of the Bank which provide for election of 14 members on the Board of Directors in so far as they were inconsistent with the provisions of section 73-B were not valid and it was incumbent upon the Bank to implement the provisions of section 73-B notwithstanding the provisions in the bye-laws. The Additional Commissioner over-ruled the objection of the present petitioners that respondent No. 5 not having raised any objection to the elections at the earliest possible stage i.e. at the stage of nomination, he could not be allowed to challenge the election which was held by the Collector. The finding recorded by the Additional Commissioner is that the election was contrary to the provisions of section 73-B of the Act.
8. This order of the Additional Commissioner is challenged by the petitioners in this petition. This petition was filed on 16-2-1982. It was taken up for admission on 17-2-1982 but it was adjourned to 19-2-1982. In the meantime, however, the District Deputy Registrar for Co-operative Societies, Nasik, made an order on 18-2-1982 appointing a Committee to manage the affairs of the society in exercise of his powers under section 77(A)(1) of the Act. When this order was passed, it appears, the petitioners filed Civil Application No. 643 of 1982 asking for an injunction restraining the District Deputy Registrar of his agents and officers from interfering with the rights of the petitioners to act as elected Directors of the Bank. On this application however, no interim order was made. The petitioners seem to have taken the matter to the Supreme Court and the Supreme Court declined to interfere with the order of this Court and dismissed the special leave petition on 8-4-1982 but made an observation that the writ petition should be expeditiously disposed of as it was an election matter.
9. There, is however, no formal amendment made in the prayer clause for quashing the order of 18-2-1982.
10. The result of this petition depends upon the decision of the question as to what is the nature of the reservation contemplated by section 73-B of the Act and whether it was necessary for the Collector to hold election only for 12 members of the Board of Directors when the bye-laws which provided for election of 14 members of the Board of Directors have not been amended.
11. The learned Counsel on behalf of the petitioners has urged that they are not responsible for the bye-laws not being amended and, according to the learned Counsel, there is no separate electorate in respect of reserved seats and if no person belonging to the category of Scheduled Castes, Schedule Tribes, notified Tribes or weaker section had stood for the election and, therefore, did not get elected as a member of the committee, the petitioners' election which had been validly held cannot be set aside. It is also contended that as long as the bye-laws were not amended there was a right in the members to have 14 Directors on the Board of Directors to be elected. The learned Counsel argues that if out of the 14 Directors elected according to the bye-laws there was any one belonging to the reserved classes, then section 73-B would be complied with, but, if by chance to person belonging to any of the classes referred to in section 73-B contested the election or having so contested could not be declared elected, then section 73-B has taken ample care to see that the reserved classes are given a representation by co-option of the members. It is exactly this which according to the petitioners, the Board of Directors were going to do when injunction was issued by the Additional Commissioner. Both, Mr. Rane, appearing on behalf of respondent No. 1 and Mr. Dalvi, appearing on behalf of respondent No. 5 have contended that the provisions of section 73-B being mandatory in nature they must prevail over the bye-laws. According to the learned Counsel, if there is a conflict between the statute and the bye-laws, the statutory provisions of section 73-B must be given effect to with the result that instead of elections being held for 14 seats on the Board of Directors elections should have been held only for 12 seats and the two remaining seats had to be reserved, for which persons belonging to the stated categories were entitled to get elected. The learned Counsel, therefore, contends that it was the duty of the Collector while framing the election programme to indicate that two seats were reserved for persons belonging to the categories specified in section 73-B and then for other seats 12 other persons would get elected. Mr. Dalvi went on to contend that having regard to the intention and purpose of section 73-B, while counting the votes as required by Rule 61 of the Rules, out of the persons who have stood for election, the persons belonging to the specified categories in section 73-B getting the largest number of votes would have to be first declared elected. The argument further is that if there is more than one person belonging to the Scheduled Tribes, Scheduled Castes and Denitrified Tribes then the person getting the largest number of votes out of them would first have to be declared elected. According to Mr. Dalvi, in the case of persons from the weaker sections if there are more than one candidate from that class of members, the one who will get the highest number of votes as between the candidates belonging to weaker section, would first have to be declared elected. According to the learned Counsel, after these two results are declared then the results of other persons have to be declared on the basis of number of votes obtained for 12 seats.
12. Before we go into these questions we must negative the objection raised on behalf of the petitioners that the election petition itself did not lie having regard to the provisions of section 144-T of the Act read with Rule 81 of the Rules. The argument appears to be that when section 144-T provides that a dispute relating to an election is to be referred to the Commissioner of the Division in which such on election is held, the powers of the Commissioner as an election tribunal to set aside an election are restricted to grounds on which the election could be declared to be void, which are specified in Rule 81 of Rules, and according to the learned Counsel for the petitioner, unless the Commissioner finds that any of the grounds as specified in Rule 81 exist, the election cannot be declared to be void. According to the learned Counsel the challenge made to the election of the petitioners does not fall in any of the Clauses (a), (b) and (c) of Rule 81 are not relevant for the purpose of this petition. But the relevant clause is Clause (d) and sub-clause (iv) thereof. Under that clause if the Commissioner is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected, by any non-compliance with the provisions of the Act or any rules made thereunder, the Commissioner has to declare the election of the returned candidate to be void. It is under this residuary-clause that respondent No. 5 sought relief by contending that the election of the petitioners was vitiated by non compliance with the provisions under section 73-B of the Act in as much as the election was held without any seats being reserved. Whether there is any substance in that contention or not is it a matter which is to be decided on merits but is would not be said that the election petition was misconceived and was not tenable.
13. Now coming to the main contention as to whether the election of the petitioners has been rightly set aside on the ground that it was not indicated at the time of election that two seats were reserved and consequently there was non-compliance of provisions of section 73-B of the Act, we must first refer to certain rules governing the conduct of the elections. As already pointed out, there is no separate electorate to elect a person for reserved seats. `Reserved seat' referred to in section 73-B is defined in Rule 2(g) of the Rules as `a seat reserved for the members belonging to the Scheduled Castes, Schedule Tribes, Vimukta Jatis and weaker sections under section 73-B.' That there is only one list of voters is clear from Rule 6 and sub-rule (4) thereof which provides that the list as finalised by the Collector after deciding the claims and objections shall be the final list of voters. Rule 18 provides for nomination of candidates and under that rule, any person may be nominated as a candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provisions of the Act, Rules and bye-laws and his name is entered in the list of voters. Rule 19 provides for presentation of nomination paper and requirements for valid nominations Rule 18(2) provides that every nomination paper presented under Rule 19 shall be completed in Form II. If we now turn to the form of nomination paper, there is nothing in the nomination paper to indicate that there is a separate contest for any reserved seats. All that the nomination paper provides is that 'In a constituency having a reserved seat, state the particulars of the Caste or Tribe or Vimukta Jati or the Weaker Section to which the candidate belongs'. The rule and the form of nomination paper thus clearly indicate that when the nomination paper is to be filled in, that a person is a candidate from a general constituency but if the constituency had any reserved seat then the person belonging to the Schedule Caste or Scheduled Tribe or Vimukta Jati or the weaker section has to make a declaration giving particulars of the caste or tribe or Vimukta Jati or the weaker section to which the candidate belongs. When these nomination papers are scrutinised and are found to be in order, the Returning Officer has merely to prepare a list of the candidates whose nomination papers have been accepted and this list has to be affixed on the notice board. The list which is thus prepared and affixed on the notice board is not required to be made on the basis of either general seats or reserved seats but this list is of all the contesting candidates whose nomination papers are found to be valid. Whether a person belonging to the class specified in section 73-B is one of the candidates whose nomination paper is found to be valid or not is not a matter which becomes relevant at all when the list of the validly nominated persons is affixed on the notice board. The rules themselves contemplate that there may be an election in which the list of validly nominated candidates may not contain a person belonging to the class specified in section 73-B of the Act. There is nothing in the Act or the rules which gives any power to the Collector to reduce the number of seats for which elections are to be held by the number of reserved seats and once there is a list of validly nominated candidates, the Collector has to proceed further with the electoral process, whether there is not a candidate available for the reserved seat at the election. This is clear from Rule 26 of the rules which provides for preparation of list of contesting candidates. Rule 26 provides that on the next date succeeding the last date fixed under Rule 16 for withdrawal of candidatures, the Returning Officer shall prepare and publish in Form III a list of contesting candidates, that is to say, candidates whose nomination papers have been finally accepted and who have not withdrawn their candidature within the prescribed time. Sub-rule (2) thereof further provides that the said list shall, subject to the provisions of sub-rule (3), contain the names in alphabetical order in the language in which the list of voters is prepared and the addresses of the contesting candidates as given in the nomination papers. The relevant form for preparing the list of contesting candidates prescribed in Form III. The Form III will again indicate that all that is necessary to be shown in the list is the name of candidate, address of candidate and the symbol allotted to the candidate. There is no place in Form III nor is there any clause for introducing any information with regard to the reservation of a seat and there is, therefore, no obligation to hold any separate election for a reserved seat.
14. It is also undisputed that there is no separate electorate for the reserved seats and the result of the election will have to be declared in accordance with the number of votes obtained by the respective candidates unless there is any specific provision indicating as to how the results are to be declared.
15. This must now bring us to the relevant rule with regard to the counting and declaration of the result. The procedure for counting of votes is laid down in Rule 58, Under Rule 58(6) it is provided that after the counting of voting papers contained in all the ballot boxes used at all the polling stations has been completed, the Returning Officer shall prepare a consolidated statement recording therein the total number of votes polled by each candidate. Rule 59 and 60 deal with recommencing of counting after fresh poll and recount of votes with which we are not concerned. When we come to Rule 61, it has to be pointed out that in place of Rule 61, which deals with the declaration of result, the State of Maharashtra had made an amendment by substituting a new rule in place of old Rule 61 by what is known as Maharashtra Specified Co-operative Societies Elections to Committee (Amendment) Rules, 1979. The new rule is to be found at page 7 of the journal portion of 1980 Maharashtra Law Journal, which reads as follows :
'61. Declaration of result of election and return of election : (1) In the case of election of the members of the committee of a society in respect of which the State Government has issued a declaration for reservation of seats in accordance with the provisions of section 73-B of the Act, the Returning Officer shall declare the result of election in the following order of preference :
Firstly, the candidate to whom the largest number of valid votes have been given from amongst the candidates contesting for a seat reserved for the members who belong to the Scheduled Castes or Scheduled Tribes within the meaning of that section, shall be declared elected.
Secondly, the candidate to whom the largest number of valid votes have been given from amongst the candidates contesting for a seat reserved for the weaker section of the members within the meaning of the section, shall be declared elected.
Thirdly, the candidates to whom the largest number of valid votes have been given from amongst the candidates contesting for the remaining seats, shall be declared elected.
(2) In the case of a society not falling under sub-rule (1), the Returning Officer shall declare the candidate to whom the largest number of valid votes have been given as having been elected.
(3) The Returning Officer shall certify the return of election in Form No. XII and where the Collector himself is not the Returning Officer he shall send signed copies thereof to the Collector as soon as possible.'
A reading of this rule will show that where for election of the members of the committee of a society, there was a reservation of seats as contemplated by section 73-B of the Act, the reservation was given effect to by providing for declaration of result in a particular manner. This was done firstly, by declaring elected a candidate to whom largest number of valid votes were given from amongst the candidates contesting for a seat reserved for the members who belong to the Schedule Castes or Scheduled Tribes within the meaning of section 73-B; then the second candidate to be declared elected was the candidate to whom largest number of valid votes had been given from amongst the candidates contesting for a seat reserved for the weaker section, of the members within the meaning of section 73-B. After these two results were declared then the other candidates to whom the largest number of valid votes had been given from amongst the candidates contesting for the remaining seats were to be declared elected. Now this method of counting will indicate that what was contemplated by the rule making authority was that notwithstanding the fact that the persons belonging to the class specified in section 73-B obtained much less number of votes than the other persons who did not belong to that class, they were first to be declared elected and after the two seats were filled up, then for the remaining seats the respective persons would be declared elected on the basis of number of votes polled. This rule was soon abrogated and by another amendment dated 24-8-1980 found in the same volume of Maharashtra Law Journal at page 56 journal portion, Rule 61 in its original form was reinstated. Rule 61 in its original form which is relevant for our purpose reads as follows :
'61. Declaration of Result : The Returning Officer shall then declare the candidate to whom the highest number of valid votes has been given, as having been elected and certify the return of election in Form XII and where the Collector himself is not the Returning Officer he shall send signed copies thereof to the Collector as soon as possible.'
Rule 61 in its original form, therefore, now requires the Returning Officer to declare the results in accordance with the highest number of votes obtained by them. The effect of this rule is very clear. While under the amended rule the declaration of result had to be made first in respect of candidates for reserved seats, now under the present rule the result had to be declared strictly on the basis of number of votes obtained. It is not easy to see that diverse results might follow as a result of the operation of Rule 61. Firstly, while declaring the result in accordance with the highest number of votes obtained, it is possible that more than one person of the reserved category could get elected. It is possible that out of the reserved categories a person belonging to only one of them may get elected. The third possibility is that no member may at all be elected to occupy the reserved seat. A further possibility is that at a given election there may not be at all a candidate qualified to fill up the reserved seat by election. Now it is obvious that the Collector being a statutory authority under the Act entrusted with the duty of conducting the election will have to strictly comply with the provisions of the relevant rules. As already pointed out, his duty consists of holding elections to the required number of seats and for that purpose on receipt of nomination papers to scrutinize the nomination papers and make out a list of validly nominated candidates. Once the election amongst these validly nominated candidates takes place he must declare the result strictly in accordance with Rule 61. As already pointed out there is no obligation on the Collector to reduce the number of seats for which persons are to be elected on the ground that there is no candidate, amongst the validly nominated, who would be entitled to fill the reserved seat. Secondly, the number of seats for which elections are to be held must be determined on the basis of the bye-laws of the society. There is no power in the Collector to treat the bye-laws as amended if neither the society nor the Registrar in exercise of the statutory powers under section 14 of the Act has taken steps to amend the bye-laws with a view to provide for elections to the reserved seats.
16. The contention of the learned Counsel for respondent No. 5 that before the results of any other candidates are declared the Collector must first find out whether there are any candidates belonging to the Scheduled Castes, Scheduled Tribes or weaker sections, and as between the first two categories of candidates, one having highest number of votes should be first declared elected and then the candidate in the second category obtaining highest number of votes should also be declared elected and then only the other persons should be declared elected, runs plainly contrary to the provisions of the Act and the Rules made for the purpose of holding elections.
17. It is obvious that having decided not to introduce a separate electorate for the reserved seats the legislature has clearly contemplated a contingency that the reserved seats would remain unfilled. That is how a deliberate and thoughtful provision has been made in the latter part of section 73-B of the Act authorizing the committee to co-opt the required number of members from amongst the persons entitled to representation contemplated by section 73-B of the Act. It is obvious to us, therefore, that section 73-B sufficiently safeguards the interest of Scheduled Castes, Scheduled Tribes and weaker sections by making an adequate provision for their representation and at the same time does away with the principle of separate electorate.
18. Mr. Dalvi has referred us to a decision in Manjuli v. Civil Judge Senior Division, Wardha, 71 Bombay Law Reporter page 560 which was a case under the Bombay Village Panchayats Act, the relevant Rule which fell for consideration being Rule 34 of the Bombay Village Panchayats Election Rules, 1959. The main part of that Rule reads as follows :
'34(1) On completion of the statement showing the number of votes recorded, the Returning Officer shall from amongst the candidates qualified to be chosen to fill a reserved seat. If any, declare subject to the provisions of Rule 5 the candidate who has secured the largest number of votes to be elected to fill such reserved seat;'
A bare comparison of this rule with Rule 61 with which we are concerned in the present case will show that Rule 34 provided for a particular manner of declaration of result and under that rule it was expressly provided that first declaration of result had to be for reserved seat. It was exactly this which was contemplated by the Rule which was substituted by amendment in 1979. That amendment now having been undone the obvious intention which must be spelt out is that the principle contained in Rule 34 of the Bombay Village Panchayats Election Rules was not accepted by the rule-making authority when the original Rule 61 was reinstated in the Rules.
19. An argument has been advanced that section 75-B must prevail over the bye-laws and though bye-laws provided for election of 14 persons, since section 73-B provided for reservation of two seats, elections should have been held only for 12 seats. We see no warrant for such construction. It is not necessary for us to go into the question as to who was responsible for not amending the bye-laws. The argument of the petitioners is that respondent No. 2 who was the Managing Director at the relevant time should have really got the bye-laws amended and if he had failed to do so then it was only the Registrar who had powers to amend the bye-laws in exercise of his powers under section 14(2). Whatever that may be, the fact remains that the bye-law remained unamended. There is no inconsistency between section 73-B and the bye-laws. Even the Government has construed section 73-B in such manner that even though the bye-laws are not amended and reserved seats remain unfilled by election the same can be filled up by co-option. If the Collector had held elections contrary to the requirements of the bye-laws, they would clearly have been illegal. We have been shown a circular issued by the District Deputy Registrar in which it is stated on behalf of the State Government that if the total number of Board of Directors exceeds the number specified in the bye-laws as a result of co-option, that would a till be permissible and that if the election took place prior to the amendment of the bye-laws then two competent persons should be co-opted. In any case, having regard to the provisions of co-option it is not possible for us to take the view that there is any inconsistency between the provisions of section 73-B and the bye-laws.
20. The order of the Additional Commissioner setting aside the election of the petitioners, therefore, is clearly erroneous, based on wholly erroneous view of law and is liable to be quashed.
21. Now as already pointed out, the District Deputy Registrar had appointed a committee of management by his order dated 18-12-1982. The preamble to the order clearly states that it was thought necessary to make the order because the election of the petitioners has been set aside. The petitioners had asked for interim injunction restraining the enforcement of that order. That injunction has undoubtedly been refused and that refusal has been upheld by the Supreme Court. However, in normal course, now in view of our finding that the elections were proper and there was no necessity to set them aside, the petitioners will be entitled to be reinstated in their offices as Board of Directors. This will necessarily require quashing of the order of the District Deputy Registrar dated 18-2-1982. A bare reading of the preamble to that order will show that the only ground on which that had been made is that various elections have been set aside and they were, therefore, not in a position to manage the society.
22. Mr. Dalvi, vehemently contended that this additional relief of quashing the order dated 18-2-1982 cannot be granted to the petitioners in this case. It would be too much of a technicality to insist on a separate petition when the very foundation of the order passed on 18-2-1982 has now ceased to exist because the order of the Additional Commissioner is set aside. The District Deputy Registrar is a party to this petition. We have, therefore, allowed the learned Counsel for the petitioners to make necessary amendment in the petition by adding an additional prayer.
23. Mr. Dalvi has also contended that the proper remedy for the petitioners is to approach the Government to have the order under section 77-A set aside. It is pointed out that a petition which was filed by some other member of the society challenging the order under section 77-A has already been rejected by this Court. His further argument is that this Court had declined to grant stay of the order dated 18-2-1982 and that order has been upheld by the Supreme Court. It is also contended that the order dismissing the petition challenging the order under section 77-A has also been confirmed by the Supreme Court in as much as the Supreme Court declined to grant special leave.
24. It is urged before us that there is an election petition pending against all the petitioners in which their elections are challenged on the ground of corrupt practices. In our view, these are not circumstances which can now control the reliefs that can be granted in this petition. The fact that the prayer for injunction against the order under section 77-A has been rejected is not now relevant because it has to be remembered that at that time the order setting aside the election was still in force. Now the situation is entirely different. The fact that some election petition is pending against the petitioner cannot be urged in the aid of continuation of the order under section 77-A. When the very foundation of the order under section 77-A was the order of the Additional Commissioner setting aside the election of the petitioner and that is now set aside, the order dated 18-2-1982 is also liable to be quashed.
25. Accordingly, petition is allowed and rule is made absolute in terms of prayer Clauses (c) and (c-1).
26. Petitioners to get costs of this petition from respondent No. 5.
27. Leave to appeal to Supreme Court is rejected.
28. Operation of this order is stayed for a period of fortnight.