R.J. Kochar, J.
1. I have heard the learned Advocates of both the sides at length on this first day of my summer vacation by the consent of the learned Advocates in the peculiar facts and circumstances of this case.
2. It appears that the respondent No. 3 bank had challenged before the Supreme Court of India the interim order dated 14-5-2001 passed by this Court (A.S. Aguiar, J.) staying the impugned order of repelling passed by the respondent No. 1 be held on 16-5-2001, till further orders and directing the Board of directors of the bank not to take any policy decision. The Supreme Court refused to interfere with the said interim order passed by this Court and dismissed the special leave petition by its order dated 16-7-2001. The Supreme Court, however, requested the High Court to dispose of the petition as expeditiously as possible preferably within two months. It appears that on account of extremely heavy board before the regular benches these petitions could not be disposed of as per the request of the Supreme Court. The learned Judge of the regular Bench gave liberty to the parties to move the Hon'ble the Chief Justice for placing the matters before any other Judge taking up final hearing matters. Pursuant to the order dated 24-4-2002 passed by the Hon'ble The Chief Justice these petitions were placed before me for final disposal. Inspite of very heavy board of very old matters knocking the doors of this Court for more than a decade for final decisions, in deference to the request made by the Supreme Court, I have heard this group as aforesaid and I have disposed them of finally as under:
3. Neither my learned Brothers Shri Aguiar, J., or Shri Radhakrishnan, J., had granted Rule in these petitions nor do I intend to do as I consider them worthless and without any merits. The petitioners in all the above petitions are aggrieved by the order passed by the respondent No. 1, the District Returning Officer and District Deputy Registrar, Co-operative Societies, Pune on 5-5-2001 in exercise of his powers vested in him under section 73(1)(c) of the Maharashtra Co-operative Societies Act, 1960 read with Rule 56-A to set aside the polling done on 29-4-2001 for the election of Board of Directors of the Bank for the period from 2001-02 to 2005-06 from the Reserved Constituencies and to order repelling to be held for those four reserved seats on 16-5-2001. The learned authority had appointed a fresh Returning Officer with a direction to him to complete the process on the same day in accordance with the prescribed Rules. The earlier Returning Officer had expressed his inability to deal with the election process for lack of past experience of such work and had requested the respondent No. 1, his superior authority to change the assignment.
4. The petitioner No. 1 in Writ Petition No. 2347 of 2001 contested the election from the general constituency and was admittedly defeated by a margin of more than 400 votes. The petitioner No. 2 in this petition was a candidate from the Reserved Constituency for women. In the second Writ Petition No. 2353 of 2001 the petitioner No. 1 contested the election from reserved category while the petitioner No. 2 was from the general category and was also defeated in the election. In the third petition being Petition No. 2354 of 2001 the petitioner was from reserved category. All the petitioners in the above petitions are aggrieved by the repelling order passed by the respondent No. 1 as stated herein above.
5. The facts, in nutshell, are that--- the petitioners contested the elections for the Board of Directors of the Bank either from general constituency or from the Reserved Constituency as the case may be. The elections were held on 29-4-2001 in accordance with the election programme. The next day, 30-4-2001, was the counting day. On that day counting of the general category elections was completed and the Returning Officer declared the results in the evening. As stated herein above both the petitioners in the above petitions who contested the elections from general category were defeated. The elections for the reserved constituency were cancelled in the process of counting of the votes as the Returning Officer found certain irregularities in the Ballot papers and in the number of Ballot papers, he submitted a report to the respondent No. 1 and requested for appropriate orders in the circumstances set out by him in his report dated 2-5-2001. On receipt of the report from the Returning Officer, as aforesaid, the respondent No. 1 the District Deputy Registrar cancelled the counting of the votes for the reserved constituencies and ordered re-poll or re-elections restricted to the reserved constituencies.
6. The petitioners have approached this Court under Article 226 of the Constitution of India to challenge the aforesaid order of the respondent No. 1 mainly on the ground that since the Returning Officer found certain irregularities and bogus voting in the reserved category elections and since he cancelled the same on that ground according to the petitioners it was equally probable that similar irregularities and bogus voting might have taken place also in the voting for the general constituency, and therefore, according to all the petitioners the repelling ought to have been ordered for both the constituencies and not only for the reserved constituency. According to the petitioners who belonged to the reserved category alternatively, no repoll should be done and the counting of the votes as they were cast on 29-4-2001 should be completed and results be declared. According to the submissions of the learned Counsel for petitioners their clients were ready to face fresh elections for both the constituencies viz. General and Reserved. The petitioners have insisted that the results of the General Constituency should also be cancelled and repelling should be done for the General Constituency also. They have insisted that repelling should not be confined only to the Reserved Constituency as they smelt and suspected irregularities and bogus voting even in the elections of the General Constituency.
7. Dr. Choudhary and Shri Govilkar, the learned Advocates appearing for the petitioners have submitted in one voice that when there was same place of election, same ballot boxes and same booth, in that case, if there was something wrong with the reserved category polling it was possible that some thing might be there in the general category also. (I have reproduced their aforesaid submission verbatim to show only surmises and conjunctures and baseless logic.) Dr. Choudhari attacked the decision of the Returning Officer in declaring the elections of the General category before completing the counting of both the categories. According to him, the Returning Officer ought not to have declared the results of the general constituency and ought to have completed the counting of the reserved constituency and only thereafter he ought to have declared the complete result of the election. The learned Counsel submitted that the results were declared in a hurried manner. He insisted that either hold fresh elections for both the constituencies or count the votes as they are in the ballot boxes. According to Shri Govilkar there was no provision for repoll. Ms. Wagle appearing in the third petition adopted the contentions of both the learned Advocates.
8. Shri Godbole the learned Advocate who appeared for the elected candidates from general constituency, respondent Nos. 6, 13 and 26 strongly contended that the present writ petitions under Article 226 of the Constitution of India are not maintainable at all and that they should be dismissed in limine. Shri Godbole pointed out that as far as the petitioners from the General Constituency are concerned they were not elected but were defeated in the election and their appropriate remedy would be an election petition or a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960. Shri Godbole contended that the order of repoll issued by the respondent No. 1 authority was legal, valid and justified in the conditions and the circumstances narrated by the Returning Officer in his report and that there was no prejudice caused to the candidates from the reserved category who would be required to go for repoll. Shri Godbole further submitted that there was no provision under the Act or the Rules that results of the entire elections should be declared once finally and that the result of the General Constituency after completion of the counting could not have been declared. The learned Advocate submitted that Chapter VA deals with the elections of the Co-operative Societies and that is the complete election Code by itself. Rule 56-F which prescribes the general duty of the Returning Officer confers on him a duty to do all such acts and things as may be necessary for effectually conducting the election in the manner provided in the Rules and the bye-laws of the notified society or societies. Shri Godbole pointed out that the Rule is very widely worded giving wide discretion to the Returning Officer to take appropriate decision as and when occasion arises. The Returning Officer certainly has elbow room or lea-way to act and decide the question to suit a situation. Shri Godbole pointed out that as reflected in his report the situation had taken a serious turn and great chaotic conditions were created in the counting hall. The Returning Officer has narrated verbatim what actually had happened on the basis of which he decided to stop the counting of the votes and submitted his report to the respondent No. 1 the higher authority, recommending repoll of the reserved constituency. According to Shri Godbole, the respondent No. 1 based his decision on the said report of the Returning Officer and took the decision of holding fresh elections for the reserved constituency. Shri Godbole has fully justified the action of the respondent No. 1 on the facts as well as on the law. Shri Godbole also pointed out that as far as the counting of the General Constituency ballots was concerned there were no complaints, and therefore, the results could be declared without any objections from any candidate. He pointed out that in the petitions the petitioners have whispered that there were oral complaints but such whisper has no basis to support and that such a baseless plea is only an after thought. Shri Godbole pointed out that the order of respondent No. 1 for repoll was a part of his election duty, he has even higher power to order elections in the whole constituency or even partly. Shri Godbole further pointed out that the petitioners have made contradictory prayers. In prayer (a) they want the cancellation of the whole election while in prayer (b) they seek proceeding of the election.
9. Shri Apte the learned Counsel for the respondent bank supported the decision of the respondent No. 1 and also the report of the Returning Officer. According to the learned Counsel it was not open to any defeated candidate to challenge the election on facts. Shri Apte submitted that section 91 of the Act provided for adjudication of the election disputes and that it provides complete Code and machinery to resolve such disputes. Shri Apte further pointed out that when there is alternative and efficacious remedy available in the election matter this Court should not entertain and interfere with such matters wherein large questions of facts are involved. Shri Apte pointed out that under Rules 56-A-19 election can be held partially and General Constituency elections which were concluded by declaration of the results could not be re-opened.
10. It is pertinent to note that the defeated general constituency candidates have tried to rake-up the present frivolous and vexatious dispute by filing the present writ petitions invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Their only remedy was to file an election petition to challenge the elections wherein they were defeated. Under the garb or guise of challenging the repoll of the reserved constituency elections these petitioners are trying to get the results in the general constituency set aside. As far as the elections in the general constituency are concerned they were validly completed and counting of the ballots was smoothly carried out and the results were finally declared by the Returning Officer. I am not at all impressed by the submission of Dr. Choudhari that the general candidates had complained to the Returning Officer orally that there was bogus voting. The charge of bogus voting if noticed by the petitioners could not have been merely conveyed orally to the Returning Officer. It is a very serious charge in the process of election. The vigilant and alert candidate would always promptly write a complaint to the Returning Officer and help him catch the bogus voters red-handed on the spot. Nothing of this kind was done by the petitioners who were finally defeated and who are now making hue and cry about the repelling of the reserved constituency elections. Dr. Choudhari was not able to point out any provision of law which prevented the Returning Officer from declaring the results after completion of the counting in the general constituency. He was not able to point out any Rule that the Returning Officer ought to have waited till the final counting of the reserved constituency elections was completed. It makes hardly any difference on the outcome or result of the other constituency merely because result in another constituency is declared or pronounced. Elections in both the constituency were held simultaneously and were completed on one and the same day. The counting of the general constituency was completed and the results were declared. I do not find any illegality or impropriety on the part of the Returning Officer for having declared the results of the general constituency after completion of the counting of the votes. Such declaration cannot be said to have any impact or effect on the counting of the reserved constituency votes. The counting in the reserved constituency was going on and was not completed and could not be completed on account of the extra-ordinary chaotic situation created in the polling station. It is significant to note that at the time of counting of the votes in the reserved constituency bogus ballot papers were found as a result of which conditions had worsened risking the life, limb and property of the people on the spot. The Returning Officer has verbatim narrated the situation and he was afraid of the situation going out of control and creation of the law and order problem if he were not to stop the counting forthwith. The Returning Officer being the man on the spot was the only proper person to have taken appropriate decision in the given circumstances. I do not find any mala fides on his part to have decided to stop the counting and recommend repelling in the reserved constituency. There is absolutely no substance in the illogical submissions made on behalf of the petitioners that the general constituency elections should also be cancelled and repelling in both the constituencies should be ordered as there was possibility of having bogus voting taken place even in the general constituency as had happened in the reserved constituency. I am not able to accept such absurd submission on behalf of the petitioners that I should infer bogus voting in the general constituency merely because there was bogus voting in the reserved constituency. Nothing prevented the general candidates from drawing the attention of the Returning Officer to the bogus voting in the general constituency at the time of voting or counting. There was not even a whisper at the time of voting of counting of the votes in the general constituency. It is only an after thought and a figment of imagination based on entirely illogical process that as something wrong was found in the reserved constituency it was possible that similar wrong might have taken place even in the general constituency voting. This has been the main plank of the submissions on behalf of the petitioners that the general constituency election should also be cancelled and repelling should be ordered even for the general constituency. There has been absolutely no material or any basis to draw such inference that a similar wrong might also have crept in the voting of the general constituency. While on the other hand the allegation of the bogus voting was made during the course of counting of votes in the Reserved Constituency and the Returning Officer had taken a very serious note of such events when he found bundle of extra ballot papers at the time of counting. He would have been equally serious in similar situation if had arisen in the course of general election. There was absolutely nothing before him to smell or suspect any bogus voting or malpractice in the general constituency elections. This fact has been further fortified by the report of the Chief Election Commissioner as per the order passed by this Court (S. Radhakrishnan, J.) wherein it is specifically found that there were additional ballot papers found in the ballot boxes than the number of ballot papers were issued. There was also a shortage in one box of ballot papers. It was, therefore, clear that bogus voting had taken place in the process of election in the reserved constituency. It needs only a 10 mlg. of common sense to understand that as soon as the bogus ballot papers were found and were seized by the Returning Officer the interested persons who would have gained advantage of such voting having been exposed, created chaotic situation making it impossible to complete the counting. The very same persons responsible for chaos are now clamouring for re-elections in the general constituency as they were defeated.
11. I fail to understand the opposition to repoll by the reserved candidates. I fail to understand why and on what basis they are opposing the repoll of the reserved constituency and why they have joined the chorus of the general defeated candidates for repoll even in the general constituency. It is now beyond any shred of doubt that bogus voting had taken place and the ballot boxes appeared to have been tampered as far as reserved constituency elections were concerned. I therefore, do not find any fault with the decision of the Returning Officer as also the respondent No. 1 for cancelling the counting of the reserved constituency votes and for ordering repoll in the said constituency. It was a legal, proper and just decision in the circumstances warranting no interference under Article 226 of the Constitution of India. I agree with the submission of Shri Godbole that Rule 56-F casts wide and general duty on the Election Officer to take appropriate decisions to match the situation and the contingency arising on the spot. The law certainly cannot provide for each and every unforeseen contingencies. The law has its own limits and it cannot match or meet the human ingenuity which has no bounds to think of a million unforeseen contingencies for which no legislation can be visualised. The law has left in its entirety to the sound discretion to the person on the spot and his judicious bona fide decision. The Returning Officer as well as the respondent No. 2, his higher authority, in my opinion have taken a correct and just decision to achieve the goal of fair election when it was found that the candidates or their agents had resorted to unfair means of smuggling bogus ballot papers and/or taking away some ballot papers from one of the ballot box as noticed in the report of the Chief Election Commissioner. In the insistence of the petitioners belonging to the reserved category to complete the counting is rather surprising. It is perhaps their fear that they would lose the advantage of the bogus voting that had taken place perhaps at their instance or for their benefit. It is equally surprising why they are also interested to set at naught the results of the general constituency elections.
12. The learned Advocates appearing for the petitioners have tried to point out some minor discrepancies between the report of the Returning Officer and the respondent No. 1 who finally ordered the repoll. I have carefully gone through both the reports and I do not find any material discrepancy or disorder or any mala fide motive in stopping counting and cancelling the election and/or ordering repoll in the reserved constituency alone.
13. It is not possible to accept the submissions on the part of the petitioners that since malpractice of bogus voting was found in the reserved constituency such malpractice should be presumed to have taken place even in the general constituency election. The Returning Officer found serious malpractice of bogus voting in the reserved constituency and he took appropriate decision to stop the counting and recommend repoll. He would have similarly acted if his attention had been drawn to such malpractice during the process of general constituency election or counting. Since no such complaints were recorded at that time presumption would be in favour of fairness of the electoral process of the general constituency.
14. In my opinion the decision of the Returning Officer which was finally confirmed by the respondent No. 1, the District Dy. Registrar, was legal, proper and justified. Both have exercised their sound and judicious discretion on the basis of the material on record and they have taken appropriate decision to meet the situation which arose on the spot and also in the interest of law and order position. Besides, I cannot sit in appeal over the final decision of the respondent No. 1 under Article 226 of the Constitution of India as I have not found any illegality, impropriety or miscarriage of justice in the decision of the said authority. There is absolutely no substance and merits in the petitions. I may say and observe that the petitioners have in fact abused the process of law by filing these vexatious and frivolous petitions which deserve to be dismissed with cost. The petitioners who belong to the general category shall pay cost of Rs. 2500/- per head and the petitioners belonging to the reserved category shall pay Rs. 500/- per head towards the costs. The costs will be deposited in the office of the respondent No. 3 Bank within eight weeks from today. The petitions are dismissed with costs as quantified above.
15. Pendency of the above petitions shall not be considered for condonation of delay in filing of an election petition in case if it would be filed by the general constituency candidates.
16. The order dated 14-5-2001 passed by this Court (A.S. Aguiar, J.) stands vacated.
17. The respondent No. 1 is hereby directed to hold repoll for the reserved constituency in accordance with law as early as possible.
Certified copy is expedited.