Letters Patent Appeal No.155 of 2008,Writ Petition No.7251 of 2007,Civil Application No.9830 of 2008

5th December, 2008

Petitioner Counsel: Shri. P. M. SHAH,Shri. P. V. BARDE
Respondent Counsel: Shri. V. D. SALUNKE,Shri. P. B. SHIRSAT,Smt. B. R. KHEKALE,Shri. B. N . GADEGAONKAR,Shri. M. V. GHATGE

Cases Cited:
K. T. Venkatagiri Vs. State of Karnataka, A.I.R. 2003 S.C. 1819 [Para 8]
South Eastern Coalfields Ltd. Vs. State of M.P., 2004(5) ALL MR 123 (S.C.)=A.I.R. 2003 S.C. 4482 [Para 8]
Huda Vs. Babeswar Kanhar, A.I.R. 2005 S.C. 1491 [Para 8]

JUDGMENT

S. R. DONGAONKAR, J.:- Heard learned counsel of the parties.

2. This L.P.A. seeks to challenge the order passed by learned Single Judge of this Court (Coram : R. M. Borde, J.) in Writ Petition No.7251/2007 dated 21-08-2008 by which, writ petition of respondent No.1 was disposed of as infructuous.

3. Facts leading to this appeal may be stated thus :

Respondent No.1 and present appellant/Intervenor in W.P. No.7251/2007 had tendered their nomination papers for contesting election from Khultabad Taluka Co-operative Societies Constituency. Their nomination papers were rejected by the Returning Officer. Respondent No.1 challenged the order passed by the Returning Officer by presenting the appeal before the Additional Commissioner, Aurangabad in view of the provisions of Section 152(A) of the Maharashtra Co-operative Societies Act, 1960. The said appeal was dismissed. As such, the relevant order was challenged in the instant petition. It appears that the appellant has not challenged that order of rejecting nomination paper. The petition of respondent No.1 came before this Court (Single Bench) for admission on 12-12-2007. The Court passed following order.

"Notice returnable 4 weeks.

Shri. Shinde, learned AGP waives notice for respondent Nos.1 and 2.

By way of ad interim orders, it is directed that the nomination paper of the petitioner be accepted."

4. The Returning Officer was directed as an interim relief to accept nomination paper of petitioner i.e. respondent No.1. It seems that the Returning Officer after accepting that nomination paper, proceeded to declare the result as there was no other contesting candidate in-fray, the said action was taken in view of the provisions of Rule 30 of the Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971). Later on, the said petition was taken on board and learned Single Judge passed following order on 13-12-2007.

"1. Petition is taken on board.

2. The order dated 12th December, 2007 passed by this Court vide which the nomination paper of the petitioner was directed to be accepted, is recalled.

3. The matter be posted for admission after Christmas Vacation of 2007."

In pursuance to that order, the Returning Officer then passed order impugned in W.P. on 15-12-2007 whereby he withdrew order passed by him to declare respondent No.1 as an elected candidate. The said order was passed by quoting order of the learned Single Judge dated 13-12-2007.

5. It may be stated that order of learned Single Judge dated 13-12-2007 was challenged in L.P.A. No.188-2007 by respondent No.1. During the proceeding of that L.P.A., learned Vacation Judge of this Court passed an order to maintain status quo till further orders, on 25-12-2007. Relevant part of order in Para.6 reads thus :

"Issue notice to Respondent No.3 bank, returnable on 8th January, 2008. It is made clear that so far as election of Aurangabad District Central Co-operative Bank Limited from Societies Constituency Taluka Khultabad is concerned, status quo be maintained till further orders. Hamdast allowed. The parties to act on the copy of this order authenticated by the court Sheristedar."

When the matter was finally heard by the Division Bench of this Court, L.P.A. No.188/2007 came to be decided by the order dated 01-02-2008. Relevant part of order reads thus :

"(5) Since according to us, it is appropriate that the parties get their rights decided before the learned Single Judge in the pending writ petition, we direct that the order of status quo granted on 25-12-2007 would continue for a period of two weeks to enable the petitioner to move the learned Single Judge and get the matter listed before the learned Single Judge for passing further appropriate orders as may be necessary in the matter. The Letters Patent Appeal, therefore, stands partly allowed to the extent indicated above.

(6) We make it clear that we have not been called upon to adjudicate or decide the correctness of the rejection/acceptance of the nomination paper nor, the declaration of the result of the election. Any observation made by us, touching the merits of the matter, should not be construed as a finding on the merits of the matter."

6. Writ Petition No.7251/2007 was then heard by learned Single Judge and order impugned in this L.P.A. came to be passed on 21-08-2008.

7. Learned Single Judge by the impugned order, mainly found that order passed by the Returning Officer dated 15-12-2007, could not have been passed by him as respondent No.1 came to be declared as elected unopposed, for there was only one candidate i.e. respondent No.1 was the only candidate whose nomination paper was accepted though, as per interim relief in the writ petition. He found further that the declaration was made in pursuance to the provisions of Rule 30 of the Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971 and prior to the recall of the order by the learned Single Judge dated 13-12-2007. Learned Single Judge further held that the Division Bench of this Court while disposing of the earlier L.P.A., found that order of the learned Single Judge had merged into the order of status quo passed by the learned Vacation Judge. Therefore, according to the learned Single Judge, the order dated 15-12-2007 by the Returning Officer could not have been made by him as there was final declaration of the result of the election by the Returning Officer on 12-12-2007. It was also held by the impugned order that only remedy available under the law was to raise a challenge was by taking recourse to the provisions of Section 144(T) of the M.C.S. Act, 1960. Considering this to be the legal position, learned Single Judge observing that the said consequential order which is said to have been issued in view of the order passed by the learned Single Judge on 13-12-2007 is beyond the competence of the Returning Officer. Once declaration is made, declaring a candidate as elected, the Returning Officer ceases to have any power and the order recalling declaration as elected, is without jurisdiction. As such, the learned Single Judge by impugned judgment and order held that the petition was rendered infructuous and disposed of as such. The request of the learned counsel for Intervener for continuation of the interim order for a period of four weeks was also rejected. This order of the learned Single Judge is challenged in this appeal.

8. Learned counsel for the appellant submitted that the Returning Officer should not have declared unopposed candidate i.e. respondent No.1 as elected on 12-12-2007. He could have done so only after seven days i.e. on 18-12-2007. As such, declaration of respondent No.1 as unopposed elected candidate is not in consonance with the provisions of Rule 30 of the aforesaid Rules. He further submitted that in view of the doctrine of Restitution, the election of respondent No.1 was rightly ordered to be set aside by the Returning Officer, consequent to the order of the learned Single Judge dated 13-12-2007. He further submitted that the observations of the Division Bench of this Court in the judgment of the earlier L.P.A, were not binding, in view of Para.6 of the said judgment. He further submitted that the circumstances of the case do warrant an action taken consequent to the interim order (Single Judge dated 12-12-2007) was needed to be recalled in view of the order passed by the learned Single Judge on 13-12-2007. He has relied on the Judgments of Apex Court in K. T. Venkatagiri and others Vs. State of Karnataka and others, A.I.R. 2003 S.C. 1819; South Eastern Coalfields Ltd., Vs. State of M.P. and others, A.I.R. 2003 S.C. 4482 : [2004(5) ALL MR 123 (S.C.)] and Huda and another Vs. Babeswar Kanhar and another, A.I.R. 2005 S.C. 1491, to contend that this is a fit case to order restitution and restoration of the original position as it was on the date prior to passing of the interim order dated 12-12-2007 and therefore, in his submission, the impugned order of the learned Single Judge of this Court is not in accordance with the provisions of law and therefore, it is liable to be set aside.

9. Learned Counsel for respondent No.1 has submitted that the appellant as he was Intervenor in the proceedings of the Writ Petition in which the impugned order was passed, is not entitled to file this L.P.A. He has in fact no locus standi to file an appeal. His remedy if at all it is there, is by way of filing Election Petition before the appropriate authorities. According to him, direction was to accept nomination of the respondent No.1 as an interim relief on 12-12-2007. Accordingly, his nomination was accepted and in view of Rule 30 of the aforesaid Rules, the Returning Officer had no option but to declare him as elected as there was only one candidate whose nomination was accepted. He had to declare result of the election forthwith and therefore, there was no question of postponing of declaration of result of the said election for any reason whatsoever and once the result of the election is declared, the election procedure gets concluded and further order to set aside that election in pursuance to the order of the learned Single Judge dated 13-12-2007 was totally illegal. In fact, it is nothing but a waste paper. According to him, order dated 13-12-2007 of the learned Single Judge was inconsequential as election procedure was already complete and ended on 12-12-2007 as soon as respondent No.1 was declared elected. He also submitted that order of the learned Single Judge, impugned in this appeal, is correct and proper and therefore, this L.P.A. needs to be dismissed.

10. Learned A.G.P. has supported the order of the learned Single Judge impugned in this L.P.A.

11. Learned Counsel for the respondent bank Shri. Gadegaonkar has submitted that declaration of the result of the election as soon as only one nomination was accepted by the Returning Officer under the orders of learned Single Judge, was correct in as much as Rule 30 came in picture and the result was required to be declared "forthwith" and as such, there was no question of setting aside that election and also declaration of the result, later by the Returning Officer in view of the order of the learned Single Judge dated 13-12-2007.

12. It is obvious that this L.P.A. is filed by the Intervenor. It cannot be disputed that the Intervenor in the writ petition has only right to address the court. He cannot take active part in the proceedings. As contended by the learned counsel for the respondent No.1, the appellant cannot prefer this appeal and he has in fact no locus to challenge the impugned judgment and order. It is difficult to disagree with the learned counsel. It would be seen that the writ petition from which impugned order arises was the petition between respondent No.1 and other respondents. The Intervenor - appellant had addressed the Court. The grievance of respondent No.1 was mainly against the respondent Nos.2 and 3 for the election of respondent No.4. His grievance was regarding non acceptance of his nomination form. Therefore, the intervenor cannot be said to be directly connected and aggrieved party because of the impugned order. Learned Counsel for the appellant did not rely on any authorities to make out a case that even intervenor can file an appeal, when his submissions have been heard and considered while deciding relevant writ petition. Merely because he claims to be aggrieved the same will not be sufficient to maintain the present appeal. In our considered view, in a case where intervenor is not directly affected by the order of the court and when he is not a party to the proceedings, he cannot be held to be entitled to file substantive appeal to challenge any judgment or order. In this view of the matter, this L.P.A. has to be rejected.

13. Even otherwise, on perusal of the impugned judgment and order, it is difficult to disagree with the view taken by the learned Single Judge for the reasons we indicate below.

14. At this stage, it is necessary to notice the relevant election programme. It seems that the last date for withdrawal of the nomination was 12-12-2007. In case of appeal, the last date of withdrawal was to be 19-12-2007. The learned Single Judge has passed order of ad interim relief on 12-12-2007, because of which, the nomination of respondent No.1 was accepted and there was only one candidate in the field. There was no appeal pending.

15. At this stage, the provisions of Rule 30 need to be seen. Relevant Rule 30 reads thus :

"30. Uncontested elections : If, after the expiry of the period within which candidatures may be withdrawn under sub-rule (2) of rule 25 (the number of candidates in the Constituency whose nominations have been accepted is equal to or less than the number of seats to be filled, the Returning Officer shall forthwith declare such candidate or all such candidates to be duly elected to fill the seat or the relevant number of seats, as the case may be), and shall complete and certify the declaration of Form V, and where the Returning Officer is not the Collector himself he shall send signed copies thereof to the Collector."

There is no difficulty in coming to the conclusion that there is an obligation on Returning Officer to declare the election of such only one candidate in the field, as elected candidate and he has to do this forthwith. The mandatory duty is cast on the Returning Officer in this regard. Therefore, he had no option but to declare the respondent No.1 as elected on that day as on the date fixed for withdrawal of nominations, he was the only one candidate in the field and therefore, in view of Rule 30, he was obliged to declare him as elected which in fact, the Returning Officer has done.

16. Later on the learned Single Judge passed order to recall interim order on 13-12-2007 prior to which respondent No.1 was declared elected. On account of recall of ad interim order, Returning Officer issued fresh order on 15-12-2007 to set aside the result declared by him on 12-12-2007. However, after declaration of the election of respondent No.1, the Returning Officer became functus officio. Therefore, he could not have passed order dated 15-12-2007 even though order of recall was passed by the learned Single Judge on 13-12-2007.

17. Further, it appears that order dated 13-12-2007 was challenged by respondent No.1 in L.P.A. N.188/2007 wherein interim order was passed by learned Vacation Judge and later on said appeal was decided by the Division Bench of this Court by judgment and order dated 01-08-2008. It was observed that "any observation made by us, touching the merits of the matter, should not be construed as a finding on the merits of the matter." Still the fact remains that, the Returning Officer had no legal authority to set aside the declaration of election of respondent No.1. In fact, no such power is vested with the Returning Officer and therefore, despite the order dated 13-12-2007, the order dated 12-12-2007 passed by the Returning Officer to declare respondent No.1 as elected candidate could subsist and it could not have been set aside by the Returning Officer himself. Therefore, view taken by the learned Single Judge by the impugned order cannot be said to be incorrect. It is needless to mention that the appellant - intervenor, may seek appropriate remedy, by way of Election Petition, if he is entitled to so at law, as observed by the learned Single Judge by the impugned order.

18. This takes us to consider the submissions of learned counsel for the appellant based on doctrine of Restitution. In fact, all the decisions cited by the learned counsel for the respondent in support of his contention are in respect of contractual matters. In our opinion, the intervenor who is not party to the proceedings, in this case to the writ petition, cannot ask for any restitution. It is only aggrieved party who had suffered because of the order of the court only can seek restitution, if he is entitled to. In this view of the matter, the appellant is not entitled to avail benefit of the doctrine of restitution.

19. Sequel therefore is obvious. The appeal has to be dismissed. The same is dismissed.

It is made clear that any of the above observations shall not be taken as expression of any view on merits if any proceedings of Election Petitions are preferred. Same if so filed shall be decided on its own merits and in accordance with law.

20. In view of the dismissal of L.P.A., nothing survives in the Civil Application and the same is also disposed of.

Appeal dismissed.