2000(4) ALL MR 842
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A.M. KHANWILKAR, J.

Manohar S/O Ganpatji Singanjude Vs. The Returning Officer Bhandara District Milk Producers Federation & Ors.

Writ Petition No. 3204 of 1998

8th September, 2000

Petitioner Counsel: S. S. JOSHI and Mrs. K. S. JOSHI
Respondent Counsel: Shri. A. M. QUAZI, Shri. M. V. SAMARTHA, Shri. S. S. BORGAONKAR, Shri KHAPRE

(A) Constitution of India, Art.226 - Election to Managing Committee of Society - Petition admitted some two years back and pending - Alternative remedy under Societies Act becoming time barred - No alternative or efficacious remedy available - Petition cannot be dismissed. (Para 5)

(B) Constitution of India, Art.226 - Parties to petition - Election challenged on ground of disqualification of one member to contest election - Returning Officer made party to petition - Though it was prudent to join state Govt. as respondent, writ petition could not be rejected since writ could be issued against Returning Officer.

1983 Mah LJ 1081 Rel. on. (Para 5)

(C) Maharashtra Co-operative Societies Act (1960), S.144E, and Bye law 19.2.2 - Maharashtra Village Police Act (1967), S.5 - Election to Management of committee of Society - One candidate appointed as Police Patil by State Govt. under S.5 of 1967 Act - He does not incur disqualification for contesting election - Status of police Patil cannot be equated with salaried employee of Govt. institution - Election is valid.

Interpretation of Statutes - Bye law.

The relevant bye law is attracted only in respect of members of the cooperative society employed in any co-operative/Government/semi-government institution as salaried employee and in no other situation. The Respondent in the case has been appointed as a Police Patil by virtue of Section 5 of the Maharashtra Village Police Act, 1967 and assuming that he has been appointed by the State Government on remuneration, even then it is not possible to hold that he is working in any of the institutions referred to in the said bye-law, viz. co-operative/Government/semi-government institution. The status of the Respondent as a Police Patil cannot be equated with the salaried employee of any Government institution in the context of the said bye-law. Since the issue involved is as to whether the law creates any statutory bar or disqualification for the Police Patil to contest the election, the said provision will have to be given strict interpretation and cannot be liberally construed. Whenever any provision with regard to any disqualification is to be construed, as the provision would entail into civil consequences against such a person, it would be necessary to construe that provision strictly. The plain language of such a provision should create a disqualification. Even if there is a reasonable interpretation which will avoid the disqualification, as in the present case, it would be essential to adopt that construction, for if there are two reasonable constructions, Court must give the more lenient one. It is not for the Court to cure the loophole in the bye-law in question by stretching its meaning so as to include even a Police Patil appointed under Section 5 of the Act of 1967, though it is not possible to hold that the Police Patil is a salaried servant of any Government institution. [Para 9]

Cases Cited:
Pandurang Hindurao Patil Vs. State of Maharashtra, 1983 Mh. L.J. 1081 [Para 5]
Minakshi Murlidhar Ghodke Vs. Additional Commissioner, Nashik., 1996(4) ALL MR 532=1997 (1) Mah. L.J. 182 [Para 7]
Sambha Gangaram Pikale Vs. State of Maharashtra, 1996(2) Mah. L.J. 182 [Para 7]


JUDGMENT

JUDGMENT :- This writ petition under Article 226 of the Constitution of India takes exception to the order passed by the Returning Officer on 8th October 1998 rejecting the objection raised by the petitioner that the respondent no. 3 was disqualified from contesting the election for the Managing Committee of the respondent no. 2 Society, being appointed as a Police Patil of Mouza Mandhal, district Bhandara by the State Government, under the relevant provisions of the Act, Rules or the Bye-laws of the Society.

2. The Returning Officer negatived the objection mainly on the ground that the respondent no. 3 was not receiving salary from the State Government but was receiving honorarium and, therefore he was not covered by any of the disqualifications.

3. In the present writ petition diverse contentions have been raised. The writ petition came to be admitted on 3rd November 1998 and it appears that it was heard from time to time. It is at this stage, that preliminary objection was taken on behalf of the respondent regarding maintainability of the writ petition on the ground that; an alternate and efficacious remedy of election petition has been provided for under the provisions of Maharashtra Co-operative Societies Act; that the State Government was a necessary party and the petition is bad for non-joinder of necessary parties; and that the decision of the Returning Officer based on the Circular issued by the State Government dated 10th May 1998, which clarifies that Police Patil appointed by the State Government under Section 5 of the Maharashtra Village Police Act, 1967 would not incur any disqualification to contest the election to the Managing Committee of any Co-operative Society, has not been assailed in the present writ petition. It was thus contended that unless the validity of the said circular was challenged, which the Returning Officer had followed and in fact implemented in the present matter, the present petition cannot be entertained.

4. On the other hand, the learned counsel for the petitioner argued that in so far as the preliminary objection regarding availability of alternate remedy is concerned, it is too late in the day to non-suit the petitioner on that ground for the simple reason that the writ petition has remained pending in this Court for over two years and it would be most inappropriate to drive the petitioner to the remedy of election petition, for even the said remedy has become time-barred, in which case no alternate or efficacious remedy can be said to be available to the petitioner in law. On the preliminary point regarding non-joinder of the State Government as a party to the present petition he contends that the Returning Officer, who has been appointed to discharge the statutory duty of conducting election to the Managing Committee of a specified society, has been impleaded and it was, therefore, not necessary to implead the State Government. Moreover, according to the learned counsel, it is well settled that writ can be issued against the Returning Officer by this Court. With regard to the third preliminary point, learned counsel fairly concedes that he has not challenged the validity of the circular in the present writ petition nor raised any ground regarding correctness and efficacy of the said circular. He, however, contends that there is no provision under the Co-operative Societies Act, which would enable the Desk officer of the State Government or for that matter even the State Government to issue such a circular. In the circumstances, the said circular, in fact, has been issued without authority of law.

5. I am not inclined to non-suit the petitioner on the aforesaid preliminary objections raised by the respondents. I find force in the stand taken by the petitioner that no alternate or efficacious remedy is left to the petitioner and the petitioner should not suffer because of the intervention of this Court in admitting the writ petition as back as on 3rd November 1998. Even with regard to the other submission regarding non-joinder of necessary parties, I find force in the argument advanced by the learned counsel for the petitioner that since the Returning Officer, who has been appointed to discharge the statutory duties of conducting election of the specified Society, has been impleaded as respondent in this writ petition, it cannot be said that the petition should be thrown out on the ground of non-joinder of necessary parties. In my view, although it would be prudent to join the State Government as respondent in this writ petition, but since the Returning Officer has already been joined as a respondent in this matter, writ can be issued against the Returning Officer. In the case decided by this Court reported in Pandurang Hindurao Patil Vs. State of Maharashtra (1983 Mah. L.J. 1081) it has been held that writ can be issued against the Returning Officer. It is, however, not necessary to deliberate on these preliminary points in greater details for the reasons stated hereinafter.

6. In so far as the merits of the rival contentions are concerned, the learned Counsel for the petitioner contends that the Respondent No. 3 was disqualified by virtue of bye-law no. 19.2.2, which reads thus :

" (He should not be a salaried servant of any Co-operative/Government/Semi-Government institution)."

7. Relying on the aforesaid bye-law, it is contended that the Respondent No. 3 was disqualified being appointed as a Police Patil by the State Government. In support of his submission reliance has been placed on the decision of this Court reported in Minakshi Murlidhar Ghodke Vs. Additional Commissioner, Nashik (1997(1) Mah. L.J. 182 : [1996(4) ALL MR 532]) to contend that since the said bye-law was not inconsistent in any manner with Section 144-E of the Maharashtra Co-operative Societies Act or the Rules framed thereunder, the same was binding on the Respondent no. 3 and could be taken into consideration while finding out whether the Respondent no.3 was a member, qualified or not, to contest the election. Besides the said decision, reliance has also been placed on the decision reported in Sambha Gangaram Pikale vs. State of Maharashtra (1996(2) Mah. L.J. 182), which has taken the same view.

8. To counter the aforesaid submission, the respondents have contended that assuming that the said bye-law can be pressed into service for contending that the Respondent no.3 had incurred disqualification; however, what is to be seen is, whether the said bye-law has any application in so far as the appointment of the Respondent no. 3 as a Police Patil by the State Government under Section 5 of the Maharashtra Village Police Act, 1967 is concerned. It is contended that on plain reading of the said bye-law it is evident that it would apply only to such persons who have been employed as salaried servant in any co-operative/Government/Semi-government institution. It is, therefore, contended that admittedly Respondent no. 3 was not appointed as a salaried servant in any institution referred to in the said bye-law and as such the said bye-law can have no application to the facts on hand and consequently the question of the respondent no. 3 being disqualified does not arise at all. It is further contended that the circular issued by the Desk Officer dated 10th May 1983 restates this position that the Police Patil or a candidate for the post of Police Patil can continue to be the office bearer or member of a cooperative society and contest the election for that purpose. It was, therefore, contended that in view of the said circular, the Returning Officer was justified in rejecting the objection taken by the petitioner about the disqualification incurred by the Respondent no. 3.

9. Having considered the above submissions, it will have to be examined, whether the bye-law referred to above is attracted to the facts of the present case. If the answer is in the affirmative, then there is no reason to take a different view than the one already taken by this Court in the decisions referred to by the learned counsel for the petitioner, that in addition to the provisions in the Act and the Rules, even the bye-law can provide for additional disqualification and that the bye-law would be binding on the member. However, from the plain language of the said bye-law it would appear that the same is attracted only in respect of members of the cooperative society employed in any co-operative / Government / semi-government institution as salaried employee and in no other situation. There is no dispute that the Respondent no. 3 has been appointed as a Police Patil by virtue of Section 5 of the Maharashtra Village Police Act, 1967 and assuming that he has been appointed by the State Government on remuneration, even then it is not possible to hold that he is working in any of the institutions referred to in the said bye-law, viz. co-operative/Government/semi-government institution. The status of the Respondent no. 3 as a Police Patil cannot be equated with the salaried employee of any Government institution in the context of the said bye-law. Since the issue involved is as to whether the law creates any statutory bar or disqualification for the Police Patil to contest the election, the said provision will have to be given strict interpretation and cannot be liberally construed as is being contended by the learned counsel for the Petitioner. Whenever any provision with regard to any disqualification is to be construed, as the provision would entail into civil consequences against such a person, it would be necessary to construe that provision strictly. The plain language of such a provision should create a disqualification. In my view, even if there is a reasonable interpretation which will avoid the disqualification, as in the present case, it would be essential to adopt that construction, for if there are two reasonable constructions, we must given the more lenient one. It would be prudent to lean towards that construction which would exempt disqualification as two possible and reasonable constructions can be put to the bye-law in question so as to obviate the exercise of stretching the meaning of the expression used in the said bye-law. The fact that the issue is one of disqualification is in itself a reason for hesitating before ascribing to phrases used in the said bye-law a meaning broader than that they would ordinarily bear. It is not for the Court to cure the loophole in the bye-law in question by stretching its meaning so as to include even a Police Patil appointed under Section 5 of the Act of 1967, though it is not possible to hold that the Police Patil is a salaried servant of any Government institution. The said bye-law, in my view, therefore, cannot be interpreted to mean that the Police Patil appointed by the State Government under Section 5 of the Maharashtra Village Police Act, 1967, can be said to be salaried employee of any co-operative/Government/Semi-Government institution as such. Since the said bye-law has no application to the facts on hand, the question of the Respondent no. 3 having incurred disqualification is totally misconceived and cannot be accepted in law. Even though the Returning Officer has not assigned the said reason in the impugned order ; however, during the course of arguments across the Bar this question has been examined and has been answered as above. Since it is a pure question of law, it was open to this Court to examine the same in this perspective. Moreover, this construction is borne out by the circular issued by the State Government dated May 10, 1998. It would be, therefore, safe to conclude that the said Bye-law can have no application to the Police Patil appointed under Section 5 of the Act of 1967.

10. For the aforesaid reasons the petition is devoid of merits and the same deserves to be dismissed. Rule stands discharge. No order as to costs.

Petition dismissed.