R.S. Narula J.
1. The main question which has to be decided in this petition under Articles 226 and 227 of the Constitution relates to the legality of the two orders passed by Shri Mahipal Singh, Deputy Registrar, Co-operative Societies, Rohtak, in his capacity as returning officer, rejecting the nomination papers of the petitioners and accepting that of Ch. Hardwari Lal, M. L. A. (respondent No. 4). for the office of the Chairman of the Panlpat Co-operative Sugar Mill Ltd., a society registered under the Punjab Co-operative Societies Act No. 25 of 1961 (hereinafter called the Act). The facts leading to the filing of the petition are brief and may first be surveyed.
2. The Panipat Co-operative Sugar Mills Ltd. (referred to in this judgment as the Society) runs a sugar mill at Panipat, District Karnal. The management of the society vests in its Board of Directors, of which the petitioner is a duly elected member, and Ch. Hardwari Lal, (respondent No, 4), a nominated member under Section 26(2) (a) of the Act. Section 26(1) and (2) (a) are quoted below: -
'26(1) The members of the committee of a co-operative society shall be elected in the manner prescribed and no person shall be so elected unless he is a shareholder of the society.
(2) Notwithstanding anything contained in Sub-section (1)-
(a) where the Government has subscribed to the share capital of a co-operative society the Government1 or any person authorised by it in this behalf shall have the right to nominate on the committee such number of persons not exceeding three or one-third of the total number of members thereof, whichever is less, as the Government may determine;
(3) * * *
(4) * * * '
3. It is an admitted fact that the State of Punjab has invested 'considerable money'' in the share capital of the society. It is on that account that Hardwari Lal respondent (hereinafter called the contesting respondent) and two others had been nominated by the Government on the committee of directors of the society on December, 24. 1965 (copy of the order is Annexure R. F. attached to the written statement of respondent No. 3).
4. Except for being a nominated director, the contesting respondent had no other interest in the society in the sense that he did not hold even a single share in it.
5. According to the election programme for conducting election to the office of chairman and vice chairman of the society (An-nexure A) nomination papers had to be filed up to 5 p.m. on December 28, 1965, and had to be scrutinised on the next day. The last date for withdrawal of nominations was December 31, 1965. Polling had been fixed for January 5, 1966. The petitioner, the contesting respondent and Ch. Dharam Singh Rathi (respondent No. 5) filed their nomination papers for the office of chairman in the prescribed form (Annexure B) within time. On the date of scrutiny, that is on December 29, 1965, respondent No. 5 filed written objections against the nomination of the petitioner (Annexure R. A.). The two objection, which ultimately prevailed with the returning officer, were to the effect (1) that 'Shri Ram Chander (petitioner) is a defaulter of Rs. 5/- as he has not paid full amount of his share money in Kharkali Co-operative society of which he is a member,' and (ii) that 'the seconder of Shri Ram Chunder is not a director and so he has no authority to become the seconder.'
6. In his ritten reply to the objections (Annexure R. D.) given at the spot, the petitioner categorically denied the correctness of both the above-mentioned objections. The factum of being in default was stated to be incorrect and was denied. Regarding the second objection it was added that the Chairman was to be elected by the shareholders of the society and the seconder being a shareholder was, therefore, a valid voter. By his order dated December 29, 1965, (Annexure C) the returning officer accepted the above-quoted two objections and rejected the nomination papers of the petitioner.
7. One Lakshmi Chand objected to the acceptance of the nomination of the contesting respondent. Out of the grounds on which objections were raised by him, only two are relevant for the purposes of this case, viz. --(i) that the name of the contesting respondent as a director of the society on behalf of the Government had not been gazetted before the filing of this nomination papers and (ii) that the contesting respondent was not a shareholder of the society and could not stand for election to the office of the chairman merely on account of his being a nominated director. All the objections against the nomination of the contesting respondent including the two mentioned above were dismissed by respondent No. 3 by a separate order of the same date (Annexure D), Respondent No. 5 withdrew from the contest The contesting respondent was thereupon declared and listed as the only validly nominated candidate and, therefore, stood elected without any necessity to resort to polling The contesting respondent started functioning as chairman with effect from January 11 1966.
8. This writ petition was filed in the above circumstances on February 4. 1966, by the petitioner (1) to set aside and quash order Annexure C and to hold that the petitioner's nomination papers were valid and entitled to be accepted, (ii) to reverse order Annexure D and to hold that the nomination papers of the contesting respondent were not valid and were liable to be rejected and consequently (iii) to remove the contesting respondent from the office of chairman by a writ in the nature of quo warrant to as the contesting respondent was alleged to be a usurper of that office. Besides the grounds of errors of law being apparent on the face of the impugned orders (Annexure C and D), the petitioner has also pressed into service a charge of mala fides and bias against respondents Nos. 2 and 3 (The Registrar and the Returning Officer) on the allegation that Returning Officer) on the allegation that they were both determined to exclude the petitioner from the contest and to have the contesting respondent elected unopposed on account of pressure from the Minister-in-charge for that purpose.
9. At the time of admission of the writ petition by the Motion Bench on February 8, 1966, Mr. Rajinder Sachar Advocate accepted service of notice of the petition on behalf of all the respondents. Separate written statements in reply to the writ petition have been filed by Mr. V.P. Johar Registrar, Co-operative Societies, respondent No. 2 (dated the 19th March, 1966), by Mahipal Singh, respondent No. 3, the returning Officer (dated the 5th March, 1966), and by Dharam Singh Rathi, respondent No 5 (dated the 7th March. 1966). Ch Rizk Ram Minister-in-charge. Irrigation and Power, has filed a separate brief affidavit dated April 22, 1966. simply denying the allegation contained in paragraph 9(2) of the writ petition to the effect that it was the desire of the minister that Hardwari Lal respondent was to be elected unanimously and thai if the petitioner did not withdraw, his nomination papers were to be rejected on one pretext or the other and that when the petitioner refused to hand over his withdrawal, his nomination papers were mala fide rejected by the returning officer under the instructions of the Registrar with a view to please the minister concerned.
10. When this petition came up for hearing before my learned brother Shamsher Bahadur J. on May 4, 1966, the learned Judge ordered that the questions raised in the petition were quite substantial and there was every likelihood of the matter being taken up in appeal before the Letters Patent Bench whatever view was taken in Single Bench and that it would, therefore be better If this case was decided In the very first instance by a Division Bench. In pursuance of the said order of reference this case came up before us in Division Bench Before dealing with the arguments addressed to us at the hearing of this case, it is necessary to notice the relevant legal provisions.
11. In exercise of the powers conferred by Section 85 of the Act, the Governor of Punjab has framed the Punjab Co-operative Societies Rules 1963 (hereinafter referred to as the Punjab Rules) Rule 8(1' authorises the Co-operative Societies in Punjab to make bye-laws in respect of various matters including -- (i) general meetings and the procedure and powers of such meetings (ii) appointment, suspension and removal of the officers of the co-operative societies and members of the committee, and (iii) constitution of the committee and procedure of holding its meetings. 'Committee' has been defined in Section 2(b) of the Act to mean the governing body of a co-operative society, by whatever name called, to which the management of the affairs of the society is entrusted Rule 22 of the Punjab Rules refers to the powers of general meeting of co-operative societies and authorises a general meeting of the co-operative society to transact, amongst other items, the business of 'election, suspension and removal of the members of the committee other than the nominated members'. Rules for election of members of the committee referred to in Rule 23 of the Punjab Rules are contained in Appendix C attached to those Rules The Punjab Rules do not appear to contain any provisions for the election of the chairman and/or vice-chairman of the committee Rules 48 provide that a co-operative society must maintain account books and other records in such form and manner as may be directed by the Registrar by a general or special order from time to time. Under Para 3 of Appendix C, referred to in rule 23 of the Punjab Rules, the Manager of a co-operative society is required to dray a detailed programme of the election in accordance with the instructions issued by the Registrar from time to time. As stated above the said appendix appear to relate only to the election of members of a committee and not to the election of a chairman of the Board of Directors Relevant Dart of Section 48 of the Act reads as below:
'48. (1) The Registrar shall audit or cause to be audited by a person authorised by him by general or special order in writing in this behalf, the accounts of every cooperative society at least once in each year.
(2) The audit under Sub-section (1) shall include an examination of overdue debts if any the verification of the cash balance and securities and a valuation of the assets and liabilties of the society.
(3) The person auditing the accounts of a co-operative society shall have free access to the books, accounts papers, vouchers, stock and other property of such society and shall be allowed to verify its cash balance and securities.
(4) The directors managers administrators and other officers of the societv shall furnish to the person auditing the account* of a co-operative society all such information as to its transactions and working as such person may require'
12. Section 55 provide:- for reference of any dispute touching the constitution, management 01 'he business of a co-operative societv to the Registrar for decision. The jurisdiction of a civil court to entertain any suit or other proceedings in respect of any such dispute, which is referable to the Registrar under Section 55, is barred. Clause (c) of Sub-section (2) of Section 55 lays down that for the purposes of Sub-section (1) any dispute arising in connection with the election of any officer of the society shall be deemed to be a dispute touching the constitution, management or the business of the society. Section 56 authorises the Registrar either to decide himself any such dispute which is referred to him or to transfer the same for disposal to any person who has been invested by the Government with powers in that behalf or to refer it for disposal to an arbitrator.
By virtue of powers conferred by Section 83 of the Act, the Registrar or his nominee, while exercising jurisdiction under Section 56 of the Act, has the power of a civil court for summoning and enforcing the attendance, of witnesses and examining them on oath: requiring the discovery and production of documents; issuing commissions for examination of witnesses and obtaining proof of facts on affidavits Section 68 of the Act provides for an appeal being preferred against any decision or award of the Registrar under Section 56 of the Act to the State Government within sixty days from the date of the decision, Similar appeal lies to the Registrar against the order of his nominee. In case the appellate ordpr is not of the Government itself, a further revision against the order of the Registrar can be preferred to the State Government under Section 69 of the Act. Section 74 of the Act enjoins on every co-operative society the duty to keep a ropy of the Act, the Rules framed there under and its bye-laws and also list of its members, open to inspection for of cost at all reasonable times at the registered address of the society Section 82 bars the jurisdiction of civil and revenue courts in respect of any dispute required under Section 55 of the Act to be referred to the Registrar. Section 84 provides that no suit, prosecution or other legal proceeding? shall lie against the Registrar or any person subordinate to him or acting on his authority in respect of anything in sood faith done or purporting to have been done under the Act.
13. I may now deal with, the rival con-tent ions of the learned counsel for the par-ties addressed to us at the Bar. The first set of arguments of Shri Mool Chand Jain, learned counsel for the petitioner, relates to the attack on the order of the returning officer accepting the nomination papers of the contesting respondent The first objection referred to in the impugned order (Annexure D) was not pressed in the form in which it is contained in that order. It was not disputed that the Registrar had not nominated the contesting respondent and that he was nominated under Section 26(2) of the Act on December 24. 1965, that is, a few days prior to the filing of his nomination papers on December 28. 1965. No rule was shown to us which required the nomination to be published in the official gazette. The form which the petitioners first objection took at the hearing was that the order of the Government nominating the contesting respondent (Annexure R. F.) could not be deemed to be the order of the Government without proof of this fact being furnished on affidavit as protection could not be sought in the respect under Article 166 of the Constitution for want of the order having been expressed in the name of the Governor. The relevant words of the order (Annexure R. F.) are quoted below:
'In supersession of the orders conveyed from time to time regarding the nomination of the Board of Directors. 'the Government of Punjab' is pleased to nominate the following representatives as directors on the Board of Directors of the Panipat Co-operative Sugar Mills Limited, Panipat-
(1) Cb. Hardwari Lal, M. L A., 23 M. L. A. Flat. Chandigarh.
(2) * * * * '
(3) * * * *
for Secretary to Govt. Punjab,
(Underlining (here in ' ' Ed) by me).
14. Article 166 of the Constitution is in the following terms.
'166 (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation anyone Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion'
15. Counsel has not at all objected to the manner of authentication of the order inasmuch as it bears the signatures of the Under Secretary to Government in the Cooperative Department and Rules of Business framed by the Governor of Punjab under Clause (3) of Article 166 have specifically authorised even Under Secretary to the Govt. to authenticate any order or instrument of the Government by appending his signatures thereto. The objection of the petitioner is that the bar to the questioning of validity of the Impugned order of the Government (Annexurs R. F.) under Clause (3) of Article 166 is conditional on the order itself, being 'expressed' to have been made in the name of the Governor Counsel contended that Inasmuch as the order is not expressed to be in the name of 'the Governor' but is the name of 'the Government of Punjab', it does not tall within the purview of Clause (1) of Article 166 and i, therefore, not immune to an attack against its validity because of the provisions of Clause (2) of that Article. In support of this contention, counsel has placed reliance on the judgment of the Supreme Court in State of Rajasthan v. Sripal Jain, AIR 1963 SC 1323 wherein it was held that any defect of form in the order of the Government would not necessarily make the order illegal and that the only consequence of the order not being in proper form as required by Article 166 is that the burden is thrown on the Government to show that the order was in fact passed by it. Counsel contended that in spite of an opportunity having been afforded to the respondents in the order of reference passed by my learned brother Shamsher Bahadur J. on May 4, 1866, Government has not filed any affidavit to discharge that burden. Mr. Mool Chand Jain then relied on the following observations in the judgment of their Lordships of the Supreme Court in R. Chitralekha v. State of Mysore. AIR 1964 SC 1823:-
'It is, therefore, settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can he established as a question of fact that the impugned order was issued in fact by the 'State Government' or 'the Governor' (underlining (here in ' ') Ed.) bv me'.
16. It is of interest to notice that even in the above-mentioned quotation from the judgment in Chitralekha's case (supra) it is obvious that their Lordships of the Supreme Court equated 'the State Government' to 'the Governor'. By now the law in this respect appears to have been settled.
17. In Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181 S.R. Das J (as he then was) held in this connection as below:
'In my opinion. Article 166 of the Constitution which purports to lay down the procedure for regulating business transacted by the Government of a State should be read as a whole Under Clause (3), the Governor is to make rules for the more convenien' transaction of such business and for alloca tibn of the same among the Minister; in so far as it does not relate to matters in regard to which the Governor is required to act in his discretion. It is in accordance with these rul s that business has to be transacted But whatever executive action is to be taken by way of an order or instrument, it shall be expressed to be taken in the name of the Governor in whom the executive power of the State is vested and it shall further be authenticated in the manner specified in the rules framed by the Governor Clauses (1) and (2) of Article 166, in my opinion, are to be read together. Clause (1) cannot be taken separately as an independent mandatory provision detached from the provision of Clause (2). While Clause (1) relates to the mode of expression of an executive order or instrument, Clause (2) lays down the way in which such order is to be authenticated; and when both these forms are complied with, an order or instrument would be immune from challenge in a Court of law on the ground that it has not been made or executed by the Governor of the State.
'This is the purpose which underlies these provisions and I agree with the learned Attorney-General that non-compliance with the provisions of either of the clause would lead to this result that the order in question would lose the protection which it would otherwise enjoy, had the proper mod* for expression and authentication been adopted. It could be challenged in any Court of law even on the ground that it was not mad' by the Governor of the State and in case of such challenge the onus would be upon the State authorities to show affirmatively that the order was in fact made by the Governor in accordance with the rules framed under Article 166 of the Constitution.'
18. In State of Bombay v. Purshottam Jog Naik, AIR 1952 SC 317 Bose J. (as he then was) observed in this connection as follows:
'One of the meanings of 'expressed' is to make known the opinions or the feelings of a particular person and when 'a Secretary to Government apprehends a man and tell him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor, and, on his behalf, in making known to the detenu the opinion and feelings and orders of, the Governor In our opinion, the Constitution does not re-quirt a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirement? is there'
19. In that case it was not stated in the body of the order of detention that it was the order of the Governor. Just above the signature of Secretary in the Government of Bombay, however, the expression used was 'Bv order of the Governor of Bombay' The Supreme Court reversed the decision of the Bombay High Court holding that the above order did not specify the requirements of Article 166 and observed that though their Lordship did not wish to encourage laxity of expression, they did not mean to suggest thai ingenious experiments regarding the permissible limits of departure from the language of a statute or of the Constitution will be worthwhile All said and done, observed Bose J., we must look to the substance of Article 166 of the Constitution and of the order which is impugned in a given case.
20. In Joseph John v. State of Travancore-Cochin. AIR 1955 SC 160 the impugned notice used the expression ''Government' instood of the word 'Raipramukh'. It was argued that the notice was not in accordance with the proviiioni of Article 166 of the Constitution Inasmuch as it was not expressed to have been made in the name of 'Rai-pramukh'. Notice had been issued on behalf of the Government and had been signed by the Chief Secretary to the United States of Travancore Cochin, who had under the rules of business framed by the Rajpramukh the charge of the relevant portfolio. This was held by the Supreme Court to amount to substantial compliance with the directory provisions of Article 166 of the Constitution.
21. In Ghaio Mal and Sons v. State of Delhi, AIR 1959 SC 65 the letter in question signed by an Under Secretary to the Government of Delhi State was held to be not immune to an attack about the correctness of Its contents under Article 166 of the Constitution because (i) the letter was interdepartmental communication, (ii) It had been written in reply to an earlier communication, and (iii) the writer of the letter had quite candidly stated that he had been 'directed to say' something and the letter did not show who had directed the Under Secretary to say what was in the letter. In these circumstances, it was held that it was quite clear that the document did not contain the order of the Chief Commissioner but only purported to be a communication at the direction of some unknown person. It was held that a document which conveyed the sanction could hardly be equated to the sanction itself.
22. In State of Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221 it was held that where an order of the Government, namely, a notification under section 3(1) of the Bihar Land Reforms Act, was expressed to be made in the name of the Governor and was authenticated by the Additional Secretary to the Government as prescribed by Article 166(2), the validity of the order or instrument could not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Their Lordships further held that even assuming that the order did not originate from the Governoi personally but was made by someone duly authorised by him in that behalf within Article 154(1) the Governor nevertheless remained responsible for the action of his subordinates taken in his name.
23. In Bachhitar Singh v. State of Punjab, AIR 1863 SC 395 it was observed by Mudholkar J (as he then was) as below:--
'The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Raipramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Raipramukh. It is not till this formality is observed that the action can be regarded at that of the State or here, by the Raipramukh.We may further observe that, constitutionally speaking, the Minister is no more thanan adviser and that the head of the Statethe Governor or Raipramukh, is to act withthe aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Ministeror the Council of Ministers may say in re-Bard to a particular matter does not become the action of the State until the adviceof the Council of Ministers is accepted ordeemed to be accepted by the Head of theState. * *Thus it is of the essence that the order hasto be communicated to the person who wouldbe affected by that order before the Stateand that person can be bound by that order.For, until the order is communicated to theperson affected by it, it would be open tothe Council of Ministers to consider the matter over and over again and, therefore, tillits communication the order cannot be regarded as anything more than provisionalin character'.
24. The provisions of Article 166 of the Constitution were not allowed by the Supreme Court to be Invoked in that case because the order of the Minister was held, in the circumstances of the case, to have been a mere proposal of a provisional character and had not even been communicated to the person concerned. Reference to the judgment of the Supreme Court in AIR 1963 SC 1323 and AIR 1964 SC 1823 has already been made above.
25. The analysis of the law laid down by the Supreme Court in the various judgments referred to above would show that it is by now settled:
(1) That the provisions of Article 166 of the Constitution are directory and not mandatory They are merely enabling provisions.
(2) That clauses (1), (2) and (3) of Article 166 have to be read together. Clause (l) should not be read divorced from Clause (2) as an independent provision. The requirements of Clause (2) have to be fulfilled in accordance with the rules of business framed under Clause (3).
(3) When an order or instrument con-tainine or referring to an executive action: of the Government of a State complies with the requirements of Clauses (1) and (2) of Article 166, it would be immune from attack in Court of law on the ground that the order or the instrument had not in fact been made or executed by the Governor of the State.
(4) That non-compliance with the provisions of either or both of the first two clauses' of Article 166 of the Constitution would only result in the order losing the protection contained in Clause (2) which It would have enjoyed If the order had been expressed in the manner required by Clause (1) and authenticated in accordance with the rules of business framed under Clause (3);
(5) That if the protection contained in Clause (2) of Article 166 of the Constitution is not available in respect of any particular order or instrument and the order or instrument is challenged in a court of law on the ground that it was not, in fact, made by the Governor of the State, the burden of proof would shift to the State authorities to prove affirmatively that the order or instrument was in fact, made or executed by the Governor; and
(6) That in order to see whether the requirements of Article 186 of the Constitution have or have not been satisfied in a particular case, it is the substance of the Article which has to be kept in view and if the substance of the requirements of the Article are satisfied, the protection given by that Article should be allowed to be invoked even though the expression used in the order or the instrument is not exactly identical in every respect with the wording of that Article.
26. Applying the above-mentioned principles to the facts of this case and keeping in view the law laid down in this respect in the various judgments on the subject, I am inclined to hold that the mere use of the expression ''Government of Punjab' in place of ''Govenor of Punjab' does not amount to the requirements of Clause (1) of Article 166 of the Constitution not having been satisfied. In various judgments of the Supreme Court on this subject, Governor of a State and the State Government have very often been equated to each other. To adopt the phraseology of the judgment of Bose J. in AIR 19S2 SC 317 (supra) 'the Constitution does not require a magic incantation which can only be expressed in a set formula of words' In the circumstances of this case, therefore, I would hold that the genuineness and validity of the order of the Government of Punjab (Annexure R. F.) appointing the contesting respondent as a nominated member of the society is immune from those attacks on account of the provisions of Article 166(2) of the Constitution.
27. The only other ground, on which the order of the returning officer accepting the nomination papers of the contesting respondent has been attacked before us, is that the contesting respondent not being an elected member of the society (not being a shareholder) could not stand for election to the office of tbt chairman. Reliance in this respect is placed on bye-law 8(iv)(e) of the bye-laws framed by the society (Annexure H. 1), which is in the following terms:
'The general meeting shall transact the following business-
(a) * * * *
(b) * * * *
(c) * * * *
(d) * * * *
(e) the election, suspension and removal of the elected members of the 'Board ofDirectors including the chairman and of ormore vice chairman. The election shall beheld in accordance with the rule framed by the Registrar in this behalf and adopted by the Board of Directors'.
28. Mr. Mool Chand Jain interprets the above quoted bye-law to mean that the general meeting of the society can elect, suspend or remove only elected members of the Board of Directors including the chairman and the vice-chairman, meaning thereby that the powers of the general meeting to elect a chairman or a vice-chairman are not in defendant of dealing with the category described as 'elected members of the Board of Directors' but is dependent upon the proposed chairman or vice-chairman or the chairman or vice-chairman being an elected member of the Board. Emphasis is laid by the leaned counsel in this respect on the meaning and significance of the use of the word 'including' in the above quoted bye-law. On the other hand. Mr. Rajinder Sachar, learned counsel for respondents Nos. 4 and 5, contends that either the word 'including' should be interpreted in the context of the bye-law to meai 'and' or the word 'including' should b related to the expression 'transact the following business' in the opening part of bye-law 8(iv) and not to the expression 'elected members of the Board of Directors'.
Learned counsel for the parties have addressed length arguments on this point. After hearing them it does appear that the intention of the framers if the bye-law has not been very happily expressed therein. But as soon as it is found that a particular, provision is capable more than one interpretation it is not for this court to strike down an order by a writ in the nature of certiorari merely because it appears to this Court that the inter petition adopted in the impugned order may be erroneous in law and that the other alternative interpretation may be more correct. A writ in the nature of certiorari cannot be directed against an order merely because it contain? what may be thought by this Court to be an error of law In order to invoke certiorari the petitioner must be able to satisfy the court that the error of law is 'apparent' on the face of the record. Whenever the interpretation adopted in the impugned order is a possible interpretation, that order cannot be said to suffer from an error apparent on its face There appears to of some force in the contention of the co set for the petitioner that possibly the intention of the framers of the bye-lay in question was that the chairman and vice-chairman should be chosen only out of the elected members of the Board of Directors who have to satisfy particular qualifications and that the said office bearers should not be allowed to be chosen out of nominated directors who may in some cases be representing an insignificant share-holding of the Government which nominated them under Section 26(2) of the Act At the same time the argument of Mr Sachar about there being to ostensible reason for excluding nominated director from being elected as a chairman when the object of nomination is to represent the interest of the Government does not appear to be without some force though the bye-law may in that case offend against suit 22. In these circumstances I hold that even if there is an error of law in the impugned order (Annexure D) in this respect the error is not apparent on the face of the order within the meaning ascribed to that expression by this Court in I.M. Lall v. Gopal Singh, ILR 1963 (2) Punj 571 = (AIR 1963 Punj 378).
29. In this view of the matter it is impossible for this Court to quash and set aside the order of the returning officer accepting the nomination papers of the contesting respondent.
30. The second set of petitioner's arguments relates to the order of the returning officer (Annexure C) dated December 29, 1965, rejecting the nomination papers of the petitioner. I may first take up the second ground on which the returning officer rejected the nomination. He held that Har Narain, who had seconded the nomination papers of the petitioner, was not a director of the society (though admittedly he was a share-holder and a member of the society') and was therefore, not entitled to second the nomination papers. Respondent No. 3 held that since a candidate, who is not a director, cannot stand for election to the office of chairma, his proposer and seconder must also be directors and not merely share-holders and members of the society. The error contained in this finding of the returning officer is apparent, on its face. No law, rule or bye-law has been cited before us by the counsel for the respondents to support the proposition of law enunciated by the returning officer. The bye-law quoted in the ear-lie part of this judgment clearly shows that the electorate for electing chairman/vice-chairman of this particular society is the general body of its members and not merely the Board of Directors. Whether the bye law in question is a normal one or an abnormal one in this respect if not for this court to consider. It is a fundamental principle of law of elections that a candidate has to be propose and/or seconded by any elector who is entitle') to cast his vote at the election in that absence of any specific provision to the contrary made in the relevant statute As admittedly there is no provision to the contrary in this case. I would hold that every voter, who was entitled to cast his vote at the election of the chairman or vice chairman was entitled and qualified to propose and/or second a candidate for any of the two officers Since Har Narain was admittedly an election entitled to vote for the election of tht chairman though he was not a director the seconding of the nomination papers of the petitioner by Har Narain was perfectly in order and no valid objection could be taken to the same by any one. The order of the returning officer allowing that objection it wholly contrary to law and is not suslaliable with reference to any rule or bye-law.
31. In spite of my finding about the second objection, the impugned order reject- ing the nomination papers of the petitioner would still stand if the other objection which prevailed with the returning officer is foundto be unassailable. But to say the least it appears that something queer happened relating to that objection. Rule 25 of the Punjab Rules lays down disqualifications formembership of the committee of any co-objective society. It provides that no personshall be eligible for election as a member oftilt committee if
'he is in default to any co-operativesociety in respect of any sum due from himto the society or owes to any co-operative society an amount exceeding his maximum credit limit.'
The petitioner was admittedly already a duly elected member of the committee. No rule has been cited before us to show that a duly elected member of the committee is not entitled to stand for election as its chairman or vice chairman is he has in the meantime incurrent a disqualification referred to in Rule 25. Be that as it may is clear that the disqualification relied upon in the instant case was about an alleged default of the petitioner in payment of a sum of Rs. 5 as balance of his shat money to the Kharakwall Co-operate Agricultural Service Society in order to disqualify the petitioner from being a member of the committee. On that ground the return officer had to find that the peti-tionei was in default to the extent of Rs. 5 due fron. him to the Kharakwali Co-operative Agricultural Service Society on the 29th December, 1965. that is on the date of scrutiny, or al the most on the 24th December, 1965, the first date fixed for filing of the nominatior papers. That a candidate was in default tor more tiian 18 months prior to tin eleant date is no ground to disqualify him or so reject his nomination papars even if it could otherwise be rejected under rule 25 (1) of in Punjab Rules. The returning Officer did not record any finding to that effect. His, holding that the petitioner was in default on the 14th March, 1964, is wholly in relevant and is not enough to support the Impugned order in this respect In this view of the matter it does not appear to be really necessary to deal with the other argument of the learned counsel to the effect that the petitioner was, in fact, not in default to the above--named society even on the 14th March, 1965. The rase of the petitioner is that he was a share-holder of the Kharakwali Co-operative Agricultural Service Society, according to bye-law 17 of which (copy Annex-urt F) the petitioner could pay his share money in 20 half-yearly in-filaments, that the petitioner had paid 19 Instalments before the 14th March, 1964. and the time of payment of the last installment had not arrived when the audit report for the year ending 12-3-1964 was signed on 14-3-1964, that the amount not having become due he could not be said to be in default in payment of the non-due amount, that even in the original audit report of which the one produced by respondent No 5 purported to be a copy, the column of ' overdue' against the petitioner's name was left blank as shown in the certified copy of the audit report in question (Annexure E) and that the copy produced by respondent No. 5 before the returning officer must have been a forgery in the above respect, that it was impossible to reconcile the alleged entry of default of Rs. 5 In the sixth column of the audit report when the petitioner was shown in column No. 7 of the very same audit report to have a deposit of Rs. 1554 P. with the society in dispute. Besides filing a certified copy of the audit report the petitioner has produced the original fill of the Kharakwali Co-opertive Agricultural Service Society which contains the original audit report purporting to bear the signatures of Shri Puran Chand Auditor. It is somewhat strange that the returning officer did not choose to retain with himself the copy of the audit report which is stated to have been filed before him by respondent No 5 at the time of scrutiny. In tried impugned order, the returning officer has stated in this respect as follows:
'The relevant entry in the audit note was seen, signed and dated by me and the audit note was returned to the objector'
32. It is equally significant that respondent No. 5 has not chosen to produce before this court the copy of the audit note which was expected to bear the signatures and date pat on it by the returning officer to fix its identity On the other hand, the fifth res-pondene has stated, in this context, in his affidavit led as return to the rule issues in this cafe as follows:
'1. That according to the audit and inspection note for the year 1963-64 the petitioner Shri Ram Chander Singh was a defaulter for a sum of Rs. 5 regarding his share money The record was shown by some employee of the Central Co-operative Bank Karual and was authenticated one and their was no forgery in the said inspection note.
2. That ' was prepared to file an affidavit in support of my objections raised by me and also gave an affidavit but I could not say whether it was attested by the Returning Officer or not. The objections (sir were?) raided before the Returning Office: in the Mill premises and there was no time for one to set it attested from the Magistrate a: the Mill was at a distance of more than one mile from the Courts. I was under the impassion that the Deputy Registrar empowered to attest the affidavit'
33. The above affirmation of the fifth respondent would show that he Is not prepared to take any personal responsibility for the authenticity or correctness of the contents of the purported copy of the audit report produced by him before the returning officer Ever the returning officer, who happened t be a Deputy Registrar of the Co-operativt Societies did not choose to obtain a certified copy of the original audit report but has produced with his return Annexure R. B. which purports to be an extract from a copy of the audit note in question obtained from the Kamal Central Co-operative Bank Limited Rarnal Though all these circumstances, coupled with the manner in which the returning officer accepted the other objection on the nomination papers of the petitioner, do lead to 5 reasonable suspicion about the genuineness of the copy of the all report said to have been produced by respondent No. 5 before the returning Officer, it is not necessary for us to pronounce on that a respect of the matter without holding a further detailed enquiry into it I do not consider any such enquiry to be necessary In view of my finding on the legal aspect of this objection to the effect that the default of more than 18 months prior to the relevant date cannot be treated to be a default for purposes of Rule 25 (I) of the Punjab Rules even if the said rule is applicable to the election of chairman/vice-chairman.
In this connection the fact, emphasised by the petitioner in his writ petition to the effect that the returning officer in his capacity as Deputy Registrar of Co-operative Societies was fully aware of the provisions of Section 48 of the Act requiring at least one annual audit and should have insisted upon the legal objection being supported by the latest audit report and not by an old one, is significant. The petitioner's averments in this connection are contained in paragraph 11 of the writ petition in the following words : --
'Thai respondent No. 3, being an experienced and senior officer in the Co-operative Department knew the implication of the facts stated in paragraph 10 above He knew and the petitioner also told him that the petitioner was fighting the election in December 1965 when the auditor had already submitted the report relating to the year 1964-65 on 28-4-1965 (copy of relevant portions enclosed as Annexure G-l and G-2) in which trip petitioner was not shown in arrears of even single pie as the amount of Rs 5/-had been paid by 28-4-1965 However, a mentioned in paragraph 9 above, respondent No 3 had to invent same excuse to reject the nomination papers Hr did not listen to the petitioner and falsely mentioned in his order that the petitioner could not refute the said objection Respondent No 3. despite objection by the petitioner did not to even a properly affirmed and verified affidavit from the objector respondent' No. 5 and described a bare statement in writing by respondent No 5 as affidavit and thus cleverly saved respondent No 5 why was promised the post of Vice-chairmanship if he withdrew in favour of respondent No. 4 from prosecution for perjury'.
34. Another objection to this part of the impugned order is that it was not bated on any legal evidence. There were only two things before the returning officer. The first thing relied upon by him is the alleged affidavit of the objector. It is now admitted by the objector that he had not sworn the statement contained in his objection before any one at all. Whatever may be the reason for respondent No. 5 not solemnly affirming or swearing his purported affidavit before any one, the consequence is that the returning officer could not treat the said written statement as an affidavit and attach thereto the sanctity which is attached to a deposition because of the sanction of punishment provided by law for perjury. The only other evidence was the alleged copy of the audit note which was not even kept by the returning officer with him and which has not been produced before us by any one. In the circumstances of the case the said copy should have at once aroused suspicion in the mind of the returning officer if he was not really bent upon rejecting the nomination papers of the petitioner for reasons best known to him. In these circumstances, I hold that one of the grounds on which the nomination papers of the petitioner were rejected, was not available in law to the objector or to the returning officer and that there was no legal evidence in support of the other ground and even if the evidence relied upon by the returning officer could be called legal, it was not capable of showing that the petitioner was in default at the relevant time. This leaves no choice to us but to quash and set aside the impugned order of the returning officer (Annexure C) whereby the nomination papers of the petitioner were rejected by him at the time of scrutiny on December 29. 1965.
35. Learned counsel for the petitioner has lastly argued that the impugned orders (Annexures C and D) are both liable to be set aside as vitiated by malice. The Minister-in-charge has denied having exerted his influence in this connection. The Registrar is alleged to have acted only at the instance of Minister but the Registrar has also denied the allegation made against him in this behalf. Returning Officer is vehement not only in denying his mala fides but in alleging that the charge levelled against him by the petitioner is itself vitiated by mallce. I do not think that on the material placed before us, it is possible to hold that the returning officer excluded the petitioner from the contest to the office of the chairman on account of any mala fides or interference by the Minister. The decision given by the returning officer on the question of legality of the seconding of the nomination papers of the petitioner does appear to lend some support to the insinuation made by the petitioner to the effect that for acme reason or the other the returning officer was inclined to exclude the petitioner from the contest. It is not necessary to finally pronounce on this matter.
36. Mr. Sachar has lastly argued that this writ petition should be dismissed as the petitioner has not availed of all statutory alternative remedies available to him under Sections 55/56 and 68/69 of the Act. In the circumstances of this case I do not think there is any force in this contention. It has been authoritatively held that the plea of availablity of alternative remedy is not an absolute bar to the maintainability of a writ petition and the said plea has to be decided on the facts and in the circumstances of each case where it is raised. In the circumstances of this case when the petitioner wanted this court to try and adjudicate upon the charge of mala fides against the Registrar and the Minister himself, it would have been wholly illusory for him to have resort to the remedy provided by Section 55 of the Act by going to the Registrar in appeal against the returning officer's impugned order. Nor would the remedy by way of revision to the State Government be anything but a farce if one of the main allegations which the petitioner intended to make was about undue influence having been exercised bv the Minister himself against the interests of the petitioner.
Even otherwise, the time for preferring an appeal under Section 55 (2) of the Act having expired, we do not think it proper to refuse to grant the relief to which the petitioner is entitled in this case on this technical ground It is significant that no election petition as such lies against the election in question. Under Sections 55/56 and 68/69 of the Act, the matter is to be decided on a very different plane than the one at which an election petition may be tribal by an independent election Tribunal. I have, therefore no hesitation in repelling this contention of Mr. Sachar.
37. Shri Narinder Singh the learned State counsel, took up an entirely different attitude in this case in so far as it relates to the attack on the election in question. According to his interpretation of bye-law 8(iv) (e) of the bye-law of the society, the contest to the office of the chairman has to be confined to the members of the Board and the only voters, who are entitled to elect a chairman, are the members of the committee and not the general body of shareholders. This interpretation, if accepted, is likely to lend support to the interpretation of the said bye-law- byMr Mool Chand Jain to some extent. But as we have held that the error of law, if any in the interpretation of the said bye-law is not apparent on the face of the record, we do not consider it necessary to decide if this third possible interpretation should be more acceptable than the one relied upon by the returning officer n rejecting the objection against the nomination papers of the cantering respondent.
But the last thing pointed out by Mr. Narinder Singh is of some importance. He has invited the attention of the court to the last sentence in Bye-law 8(iv) (e) of the bye-was of that society which provides that the election envisaged by that bye-law including the election of the chairman has to be held only in accordance with 'the rules framed by the Registrar in this behalf and adopted by the Directors' of the society. We asked the learned counsel appearing before us if any Rules have been framed in this behalf by the Registrar which might have been accepted by the Board of Directors of the society. Whereas Mr. Mool Chand Jain and Mr. Narinder Singh said that no such rules have been framed, Mr. Sachar could only say that he wag not aware of any such rule. In such a situation. It appears that the election of the chairman was itself not In accordance with the aforesaid bye-law and that in the eye of law there was no election of the Chairman at all.
38. From whatever angle the matter is viewed, it appears to us that the election of the contesting respondent to the office of the chairman of the society has to be set aside In this case.
39. I would, therefore, accept this writ petition and quash the order of the returning officer (Annexure C) dated December 29, 1965, rejecting the nomination papers of the petitioner, but uphold the order (Annexure D) of the same date dismissing the objections against the nomination papers of the contesting respondent. This would automatically result in the setting aside of the election of respondent No. 4. It would be for the society to see that the fresh election, if any, is held in accordance with such rule as may be framed or might have been framed by the Registrar and adopted by the Board of Directors of the Society as envisaged in bye-law 8(iv)(e) of the bye-laws of the society In view of the divided success of the parties, no order is made in this case as to costs of the proceedings in this Court.
Shamsher Bahadur, J.
40. I agree.