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Namdeo Govindrao Patil and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Trusts and Societies
CourtMumbai High Court
Decided On
Case NumberWrit petition No. 691 of 1983
Judge
Reported in1984(1)BomCR592
ActsMaharashtra Co-operative Societies Act, 1960 - Sections 144T; Maharashtra Specified Co-operative Societies Election to Committees Rules, 1971 - Rules 5(2), 6, 18(3), 18(3A) and 19; Maharashtra Specified Co-operative Societies Election to Committees (Amendment) Rules, 1980 - Rule 18(3) and 18(3A)
AppellantNamdeo Govindrao Patil and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateV.B. Ghatge, Adv.
Respondent AdvocateS.S. Choudhary, Adv. for respondents 1, 2 and 6 and ;A.H. Joshi, Adv. for respondent Nos. 3, 4 and 5
Excerpt:
.....and rule 18 of maharashtra specified co-operative societies election to committees (amendment) rules, 1980 - election of board of directors of society was due - 28 nomination papers received - out of which 3 were rejected by returning officer as they were not accompanied by copies of resolution - divisional commissioner cancelled all 28 nomination papers as invalid - validity of order of questioned - nomination supplied by returning officer were as per old form as they stood before amendment - rules were amended long ago - returning officer by supplying old form complicated the matter - commissioner within his right in setting things right - held, order correct and needed no interference. - - it is well known canon of construction that clear object of the legislation should not..........election to committees (amendment) rules, 1980 (the 'amendment rule' for short). by the amendment rules, rules 5(2), 6, 18(3), 19 and form ii were changed. the original rules 5(2), 18(3) and (3-a) read as under :---'5(1) x(2) where a society is a member of a specified society the specified society shall call for the name of the delegate duly authorised to vote at an election on behalf of affiliated society, so as to reach it by the 2nd july. while communicating the name of its delegate to the specified society, the affiliated society shall enclose a copy of the resolution of the society or its committee under which the delegate is so authorised. the specified society shall include in the list of voters the names of all such delegates as have been communicated of it before the date fixed.....
Judgment:

V.A. Mohta, J.

1. Often there is talk about sickening law delays. One contributing factor is 11 ill drafted legislations. This case aptly proves this point and that 'in drafting, it is not enough to gain a degree of precision which a person reading in good faith can understand but it is necessary to attain if possible, a degree of precision which a person reading in bad faith cannot misunderstand.'

2. The Latur Taluka Sahakari Kharedi Vikri Sangh Limited, Latur is a specified society within the meaning of section 73-G of the Maharashtra Co-operative Societies Act, 1960 ('the Act' for short). Elections of the Board of Directors of this federal society had become due for the year 1982-83, Board consists inter alia of 8 representatives of the affiliated Co-operative Societies. The election to the Board is governed by Chapter XI-A of the Act and the Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971 ('the rules' for short). Election process was started by preparing a provisional list of voters from different constituencies under Rule 4 of the rules. After considering objections, list was finalised under Rule 7 on 16th August, 1982. Election programme as contemplated under Rule 16 was published thereafter. In all 28 nomination papers were received for the 8 seats reserved for constituency of member-societies. Eight petitioners and respondents Nos. 3 to 5 had also submitted nomination papers. In the scrutiny, the Returning Officer respondent No. 6 rejected nomination papers of respondents Nos. 3 to 5 as they were not accompanied by copies of resolutions of the Committee of affiliated societies seconding their proposal, as was done in the case of nomination papers of the petitioners. Amongst those who were validly nominated were the petitioners who ultimately emerged successful in the election. Election petition as provided under section 144-T read with Rule 74 of the rules was filed before the Divisional Commissioner, Aurangabad, by respondents Nos. 3 to 5. The Divisional Commissioner came to the conclusion that all the 28 nomination papers were invalid in the absence of a seconder as provided by the rules prevailing at the relevant time. He set aside the whole election, ordered fresh election and directed refixation of election programme from the date of calling the nomination papers. The correctness and validity of this order dated 14th November, 1983 Exhibit 'A' is questioned in this petition.

3. It seems to us that the order is correct and needs no interference. Admitted position is that the nominations papers supplied by the Returning Officer as required by Rule 6 were as per old Form II prescribed under Rules as they stood before their amendment by the Maharashtra Specified Co-operative Societies Election to Committees (Amendment) Rules, 1980 (The 'Amendment Rule' for short). By the Amendment Rules, Rules 5(2), 6, 18(3), 19 and Form II were changed. The original Rules 5(2), 18(3) and (3-A) read as under :---

'5(1) x

(2) Where a society is a member of a specified society the specified society shall call for the name of the delegate duly authorised to vote at an election on behalf of affiliated society, so as to reach it by the 2nd July. While communicating the name of its delegate to the specified society, the affiliated society shall enclose a copy of the resolution of the society or its Committee under which the delegate is so authorised. The specified society shall include in the list of voters the names of all such delegates as have been communicated of it before the date fixed for publication of the provisional list. In addition to the names to the delegates, the list shall contain the names of the affiliated societies, their registration numbers and addresses and the names of constituencies, if any, to which they belong. A society which has communicated the name to its delegate shall not be permitted to change the name of its delegate after the final list of voters is displayed by the Collector under Rule 7.

18(1) x x x x(2) x x x x (3) Not withstanding anything contained in sub-rule (2), where any societies from a constituency wish to propose any candidate, the name of the person to be nominated as a candidate by them shall be proposed by a member society after its committee has passed the necessary resolution and shall be seconded by another member society after its committee has passed the necessary resolution. The nomination paper shall be signed on behalf of such society as proposer and seconder and certified copies of the resolutions shall be attached to the nomination paper;

Provided that, where the constituency consists of three or less society members, the name of the person to be nominated as a candidate may be proposed by a member-society as above, but need not be seconded by another member-society.

(3-A). The resolution referred to in sub-rule (3) shall be distinct and in addition to the resolution of a society for electing its delegate to vote on its behalf at the election of federal society.'

4. Rule 5(2) provided for inclusion in the voters list of the federal society of a name of a delegate duly authorised under a resolution to vote at an election on behalf of the said society. The procedure contemplated was to send the copy of the resolution of authorisation to the federal society within a specified time. No change in the name of delegate was permitted after the provisional list with the name of the delegate was finalised and final list of voters was published by the Collector of the district under Rule 7. Rule 18(3) provided for manner of proposing and seconding the name of a candidate for election by an affiliated society. Committee of one affiliated society had to pass a resolution proposing a candidate and committee of another affiliated society had to pass a resolution of seconding. Nomination papers had to be signed on behalf of a proposer and seconder society and certified copies of these resolutions were required to be attached to the nomination papers. Sub-rule (3-A) clarified that resolutions referred to in sub-rule(3) had to be distinct from the resolutions of delegation to vote as contemplated under Rule 5(2). The nomination paper had to be in the old form No. 11 which under the circumstances had no column for seconding. Thus, under the old scheme, the delegate having authority to vote had no right of proposing or seconding a candidate of his choice and had merely an authority to vote on behalf of the affiliated society. The right of proposing or seconding a candidate visited exclusively in the affiliated society.

5. Perhaps the old scheme posed certain practical difficulties in the working. Changes at the eleventh hour on the spot became impossible though necessitated by many factors including duplication of the nomination of the same candidate, in the absence of communication gap between different societies working at different constituencies. By Amendment Rules, the delegate contemplated under Rule 5(2) was also authorised to propose or second on behalf of the affiliated society and consequently, the necessity of a separate resolution for proposing or seconding a candidate by such societies was dispensed with. Old Rule 18(3) was substituted by the new Rule 18(3) which reads as under :---

'(3). Any person whose name is entered in the list of voters may be a proposer or a seconder for nominating a candidate for election; provided that, in the case of elections from the constituency of societies, the proposer and the seconder shall be from the same constituency.'

Last sentence in Rule 5(2) was also amended by permitting the change in the name of the delegate not later than 7 days before the date appointed by the Collector for making nominations under Rule 16. Previously, the change was not permitted once the final list was list was displayed under Rule 7. Form 11 was also amended by providing a column for seconding. It is apparent that this change in the form was necessitated because seconding had to be done by an individual and in the nomination paper itself.

6. But for a small but vital slip on the part of draftsman of the Amendment Rules, 1980 there would have been no scope whatsoever even for controversy over this otherwise simple issue. Perhaps mistake line in not including even sub-rule (3-A) along with sub-rule (3) in the opening lines of paragraph No. 4 of the Amendment Rules. Paragraph No. 4 begin with the following lines :

'In Rule 18 of the said rules, for sub- rule (3) the following sub-rule shall be substituted namely :---'

What really ought to have been done was to add the words 'and (3-A)' after the words 'for sub-rule (3)'. As a result of this inadvertent omission there was scope together an impression that sub-rule (3-A) has been retained in the rules. The stand taken by the respondents Nos. 3 to 5 is that this sub-rule (3-A) is deliberately retained and, therefore, all provisions should be harmoniously construed, and if so construed seconding by a resolution of the society was legal and, therefore, the nomination papers of the petitioners were valid. Shri Ghatge, the learned Counsel for the petitioners, invited our attention to following observations in the case of Bengal Immunity Co. v. State of Bihar, : [1955]2SCR603 :---

'It is a cardinal rule of construction that when there are in a statute two provisions which are in conflict with each other such that both of them cannot stand, they should, if possible, be so interpreted that effect can be given to both and that a construction which renders either of them inoperative and useless should not be adopted except in the last resort.' In our judgment, this is one of those pre-eminently fit cases where 'last resort' has to be adopted and sub-rule (3-A) has to be treated wholly as redundant and inoperative, having regard to the whole context and the unambiguous object of the Amendment Rules. It is well known canon of construction that clear object of the legislation should not be allowed to be defeated only because the draftsman has either been unskilful or negligent. Harmonious construction as submitted leads to absurdity. Close scrutiny of the old scheme indicates beyond doubt that sub-rule (3-A) was an integral and inseparable part of old sub-rule (3). As a result, sub-rule (3-A) cannot have any independent existence. The only object of sub-rule (3-A) was to make it clear beyond doubt that resolution contemplated under old sub-rule (3) should be distinct from the resolution of electing a delegated under rule 5(3). If sub-rule (3-A) itself has been removed and has no place in the new scheme, sub-rule (3) has to be considered as otiose. Any possible doubt about the legislative intent is cleared by providing a column for seconder in the new form for the first time.

7. It is contended that the Divisional Commissioner has committed an error of law in deciding the election petition on the grounds not raised. We do not agree. There has been a basic error in accepting the nomination papers without a valid seconder. Right to second has been conferred by Amendment rules on the delegate. All the nominations were admittedly not seconded by delegates in accordance with the rule as amended and were, therefore, ex facie invalid. Such a defect, under the circumstances, was clearly of substantial character and Rule 23(4) of the Rules could not be attracted. Rule 81 enumerates grounds for rendering the elections invalid. Improper acceptance of any nomination paper is one of those grounds. In regular election petition, the Divisional Commissioner notices this obvious illegality. His decision on the point did not depend upon adjudication on any question of fact. No question of prejudice, therefore, arose on that count. Parties were heard on this point. The Divisional Commissioner was thus within his rights in setting the things right. In any case, no interference in writ jurisdiction is called for on this count.

8. To conclude, the petition is dismissed and the rule is discharged. We are inclined to saddle the Returning Officer, the respondent No. 6 with costs of parties for the reason that it was he who by supplying the old form complicated the matter. After all the rules were amended long ago and had even a little care been taken by him to notice the up-to-date rules, this unnecessary waste of public money and time and inconvenience to the parties, would have been avoided. Needless to mention that the stay granted earlier stands vacated.

9. We have judicially determined that sub-rule (3-A) of the rule is redundant and has not been removed from the Statute Book only because of inadvertence. The State Government has also taken a stand before us that this sub-rule is redundant. It is, therefore, necessary to take immediate steps in the matter and to rectify the mistake by making necessary amendment with a view to avoid repetition of such waste of public time and money at least in future, for possibility of everyone concerned not noticing this judgment cannot be ruled out.


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