Judgment:
ORDER
1. Liberty to add State as a party.
2. Rule made returnable forthwith by consent.
3. Mr. E. P. Sawant, A.G.P. waives notices for respondents Nos. 1, 2 and 5, Mr. Jadhav for respondent No. 3 and Mr. Parundekar for respondent No. 4.
4. The petitioner is a producer member of respondent No. 3 Karkhana which is a Specified Society for the purposes of Maharashtra Co-operative Societies Act, 1960. The elections for the managing committee were declared on 16-6-1994 and the last date for filing the nomination papers was 22-6-1994. The date fixed for scrutiny was 23-4-1994.
5. At the time of the scrutiny, respondent No. 4 filed an objection (vide Exhibit A, page 12) that the petitioner was a defaulter inasmuch an amount of Rs. 3,427.25 was due to the Karkhana from him. The scrutiny was, therefore, adjourned under proviso to Rule 23(5) of the Specified Co-operative Societies Election to Committees Rules, 1971 by the Returning Officer to 24-6-1994 on application. On that day, the petitioner tendered before the Returning Officer a challan from A.D.C.C. Bank, Aurangabad, showing the deposit of amount of Rs.3,000/- in the account of the respondent No. 3 Karkhana on 24-6-1994, i.e. the adjourned date of scrutiny. The returning Officer took a view that the relevant date for determining the disqualification on account of default under Section 73FF of the Maharashtra Co-operative So-cities Act, I860 was 16-6-1994 and as the petitioner was a defaulter on that date, though the amount was paid on a subsequent date, he was disqualified for being elected to the managing committee. He, therefore, rejected the nomination paper filed by the petitioner.
6. The Returning Officer was present in the Court today. Mr. Eknath Sawant, the learned A.G.P., submitted that the Returning Officer has not committed any error of law inasmuch as on plain reading of Section 73FF of the Maharashtra Co-operative Societies Act, the relevant date for determining the eligibility of the candidate was the date of filing of the nomination papers.
7. The decision of the Returning Officer was confirmed in Appeal by the Additional Commissioner, Aurangabad on 4-7-1994. Therefore, this writ petition was filed.
8. The first contention of Mr. Hon is that as per explanation to Section 73FF(1) a notice of demand should have been served on the petitioner in order to enable the Returning Officer to categorise him as a defaulter. He submitted that no such notice was ever served upon him. In any event, his contention was that the petitioner had never received any such notice of demand. In reply to this, Mr. Jadhav and Mr. Parundekar, the learned Counsel for the respondents Nos. 3 and 4, tendered on record a copy of the notice dated 6-4-1994 along with a copy of the register showing that the aforesaid notice was dispatched under certificate of posting on 6-4-1994. The original register from which the aforesaid extract was taken, was also placed before us for perusal and there appeared no reason to doubt that the notice was, in fact, dispatched under certificate of posting on 6-4-1994. The fact, however, remains that according to the petitioner, he has not received the notice. In law, a certificate of posting raises only a presumption to the effect that a parcel containing some communication was received by the postal authorities for dispatch under that certificate on the date on which it purports to have been received by them. Itmay also be presumed that in the due course of business, the postal authorities had or might have had dispatched the same for delivery to the addressee on the address noted on the postal article. It may be further presumed that in the course of business, the postal authorities had or might have had caused the postal article to be delivered to the addressee. But, the law does not raise an unrebuttable presumption that such a postal article was, in due course, received by the petitioner. In the circumstances of a particular case, it may be possible even to presume that such a postal article must have been received by the addressee, if subsequent conduct of the parties could enable the Court to presume so. In the present case, there was nothing on record before the Returning Officer, from which one could have inferred that such a notice was, in fact, received by the petitioner, especially when the contention of the petitioner was that such a notice was not received by him.
9. Mr. Parundekar invited our attention to Bye-law No. 73 regulating the affairs of the Karkhana in question. Under that Bye-law, whenever it was required under the Bye-laws to give a written notice to a member, dispatch of such a notice under a certificate of posting should be considered as sufficient service of the communication on the member. In the first place, the aforesaid Bye-law poses to contain therein some legal presumption. Ordinarily, it would be subject to the general rules of law of evidence and the relevant rule of law of evidence is one as indicated above. Secondly, Bye-law No. 73, speaks only of the notice issued in pursuance of the Bye-laws. It does not, and it cannot, refer to the statutory notices that are contemplated under the Act or statutory rules made thereunder. Even then, thirdly, the presumption which is spoken of in Bye-law No. 73, cannot be said to be a conclusive presumption, in any event. It must be considered to be a rebuttable presumption and as indicated above, unless the conduct of the parties showed otherwise or unless there is some other material evidence 10 show that such a notice had been received, a statement on oath by the addressee that he had not received the notice will have to begiven its due weight. In the circumstances of the present case, it is not possible for us to conclude that the notice, if dispatched, was really received by the petitioner.
10. Mr. Hon, the learned Counsel for thepetitioner, admitted that the dues in question were the dues towards the price of seeds purchased in the current year by the petitioner from the society. According to him, ordinarily, the practice of the Karkhana is to adjust such dues as against the amount of price of sugarcane supplied by the producer member to the KarKhana in the course of the year. He submitted that as per this practice, the petitioner had presumed that the amount of dues would be accordingly adjusted in due course by the Karkhana against the price of sugarcane to be paid to him. One can understand such a practice, but the question is, whether, for the purposes of Section 73FF(1), the awareness of the member that there were dues from him to the Karkhana could be over-looked. In ordinary course, it may be a practice to adjust the claims against the price of sugarcane payable to a producer-members. But, that is a matter of recovery by adjustment. There is no reason to suppose that this course would not have been followed by the Karkhana in the event of the petitioner not filing his nomination paper for the election. But, that, circumstance, by itself, would not mean that the petitioner could not be a defaulter because, though he was aware of his dues to the Karkhana and the amount thereof, he had not bothered to pay it at least till the date on which his nomination papers came for scrutiny.
11. There is one more angle with which the facts in this case may be viewed. The date on which the petitioner had purchased seeds from the Karkhana was not before the Returning Officer. In order to constitute a default under explanation (c)(ji) to Section 73FF(1)(i), 'a member who has purchased any goods or commodities on credit.... andfails .... to pay the price of such goods orcommodities ..... after receipt of notice ofdemand by him from the concerned society or within thirty days ....... or from the date ofdelivery of goods to him ....... whichever isearlier, 'will be a defaultcr. In this case, there was no evidence before the Returning Officer from which it could either be held that the payment was not made within thirty days of service of notice of demand (because such a notice was not proved to have been served much less, the date of service) or that the payment was not made within thirty days of delivery of goods. The Returning Officer does not appear to have required the objector or the Karkhana to adduce any evidence on those points. Under rule 23(2) of the Specified Co-operative Societies Election to Committees Rules, he was duty bound to hold such summary inquiry as he thought necessary and under Rule 23 (5) he should have allowed an opportunity to the petitioner to rebut the objection. True it is that he had adjourned the matter for inquiry to the following day; but, he had not taken suitable steps to satisfy himself that the petitioner did really fall within the scope of the definition of the expression 'defaulter', the relevant portion of which is quoted above. The finding of the Returning Officer that the petitioner was a defaulter and the consequent rejection of nomination papers were, therefore, not warranted by law. Both must be quashed and set aside.
12. Another law point argued with vehemence, by Counsel for the parties was, whether or not, under Section 73FF(1), non payment of the dues by a member upto the date of the scrutiny could be considered as a default. In the present case, admittedly, the petitioner had deposited the amount due from him in the account of the Karkhana and had produced the receipt before the Returning Officer. Mr. Eknath Sawant relied upon the wording of Section 73FF. The relevant portion of Section 73FF reads thus:
'Disqualification for membership of Committee : 73FF(1): Without prejudice to the other provisions of this Act of the rules made thereunder in relation to the disqualification of being a member of a committee, no person shall be eligible lor being appointed, nominated, elected, co-opted or, for being a member of a committee, if he --
(i) is a defaulter of any society;
Explanation: For the purposes of this clause, the term 'defaulter' includes -
(c) in the case of any society, -
(i) a member who has taken anamat or advance; or
(ii) a member who has purchased any goods or commodities on credit or avail himself of any services from the society for which charges are payable; and fails to repay the full amount of such anamat or advance or pay the price of such goods or commodities or charges for such service, after receipt of the notice of demand by him from the concerned society or within thirty days from the date of withdrawal of anamat or advance by him or from the date of delivery of goods to him or availing of services by him, whichever is earlier.'
At one point of time, it was sought to be submitted that the expression 'nominated' in sub-section (1) had a reference to filing of nomination paper or acceptance thereof at the scrutiny by the Returning Officer. This argument is not sustainable because, the section speaks of 'nominated .... for being a member of a committee' and not of 'nominated for contesting an election' for becoming a member of a committee. Again, one has necessarily to note that there are several categories of members of a managing committee, namely, some are appointed, some are nominated by the Government or other authorities, some are elected and some are co-opted by the members of the managing committee themselves. The word 'nominated', here, does not refer to filing of the nomination paper for election or to the acceptance of the nomination paper by the Returning Officer. The disqualification contemplated by Section 73FF(1) is for 'being appointed, nominated, elected, co-opted, or for being a member of a committee' and not for filing a nomination paper so as to enable him to contest the election.
13. Had the matter been left to be decided only with reference to this consideration, if a person, who is objected to be a defaulter, were to admit the dues and choose to deposit the amount of dues with the Karkhana or theiragents including the Banks, on or before the date of the scrutiny of the nomination papers, there would not have necessarily been a bar, contemplated in Section 73FF(1) for his' nomination paper being considered as a valid one because, the section, by itself, does not lay down, explicitly or implicitly, a date on which the person seeking to file nomination papers should be considered to be not eligible to file the same in the light of his alleged default in payment.
14. But, the legal position is not so. Section 73FF(1) contains a non obstante clause 'without prejudice to the other provisions of this Act or the rules thereunder.....'. Therefore, a reference will have to be made to the relevant rule. Rule 23(1) of the Specified Co-operative Societies Election to Committees Rules provides for the scrutiny of the nomination papers presented under Rule 16 thereof, and sub-rule (2) lays down, '(2) The Returning Officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary reject any nomination on any of the following grounds, that is to say -
(a) that the candidate is disqualified for being chosen to fill the seat by or under the Act....'
Rule 23(4), then, contains a mandatory direction that the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of a substantial character. Again, sub-rule (5) lays down that the Returning Officer shall hold the scrutiny on the date appointed in this behalf under Rule 16 and shall not allow any adjournment of the proceedings, except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control. The proviso to that sub-rule says that in case any objection is raised by the Returning Officer or is made by any other officer, the candidate concerned may be allowed time to rebate it not later than the next day and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. Sub-rule(6) requires the Returning Officer to enforce to each nomination paper his decision accepting or rejecting the same. Thus, it will be clear that the point in the context of disqualification of a candidate that is to be decided by the Returning Officer after summary inquiry is whether or not, the candidate is disqualified 'for being chosen to fill the seat by or under the Act.' Entire Rule 23 of the Specified Co-operative Societies Election to Committees Rules, does not give any indication as to the date on which the person should be found disqualified for filing a nomination paper for the election; that is to say, whether he should be without disqualification on the date on which the nomination paper was filed or on the date on which the decision regarding the scrutiny was given.
15. The contention of Shri Hon, the learned Counsel for the petitioner was that the date relevant for the aforesaid purpose would be the date on which the nomination paper was to be scrutinized. On the other hand, the learned Counsel for the respondent No. 3 Karkhana and respondent No. 4, (the objector), submitted that 'the relevant date should be the date on which the nomination papers were filed. The learned A.G.P. also supported the orders passed by the Returning Officer with the same contention as was raised by Mr. Parundekar and Mr. Jadhav, representing respondents Nos. 3 and 4, respectively.
16. For facilitating the decision on the point involved, a reference may be made to the scheme contemplated by the Act for the purposes of elections and the first meeting of the managing committee to be elected. The first point to be noted is that, in the context of members who are to be appointed or nominated by authorities or who are to be coopted by the members, the relevant date for deciding whether or hot they are eligible, would obviously be the date on which such a decision is to be taken. That date may not have anything to do with the date on which nominations are filed by eligible members for being elected to the committee or the date on which the Returning Officer is supposed to scrutinize the nomination papers. The date offiling of nomination or the date of scrutiny is a question that is to be answered only in the context of election of the members. It is, thus, clear that in the absence of any specific date having been given in Section 73FF(1) of the Act and in Rule 23 of the Specified Cooperative Societies Elections to Committees Rules, the date on which the nomination papers are filed is not a date on which necessarily the member eligible to file the nominations should be without any disqualification. Under Rule 16 of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, a programme is to be determined by the Collector and the rule lays down that the date for making nominations, the date for publication of the nominations received and the date of scrutiny of the nominations, etc. are to be prescribed. Neither the Rules nor the Act prohibit eligible members for filing their nomination papers, after such a programme is declared, a day or two before the last date of filing nomination papers. A person who had filed nomination papers a couple of days before the last date fixed for filing nomination papers may be a defaulter within the meaning of the explanation to Section 73FF(1)(i) and if the date relevant for determining whether he was disqualified or not, is to be the last date of the filing of the nominations, it is possible to conceive that the persons who had filed the nomination paper a couple of days before the last date of the filing o'f the nomination, would not be considered to be a defaulter, if he were to pay to the concerned society all his dues before the last date of accepting the nomination papers. Again, it is not that a person who could be considered defaulter on the date on which the election programme was declared, could not cure the defect by paying to the concerned society the entire amount due from him and wipe out the stigma of being a defaulter before the last date of filing of the nomination papers. It is not that the Statute or the Rules framed thereunder considers a default committed in the past as a perpetual stigma disentitling him from filing the nomination papers. On the other hand, the wordings of the S. 73FF(1)(i) and of entire clause (c)(ii) of explanation to S. 73FF(1)(i).are drafted in the present tense to as to refer' the present position relevant during the period at or after the commencement of the election process, whereas clauses (ii) and (iii) of sub-section (1) of Section 73-FF, refer implicitly to the events, which had taken place in the past. In other words, Section 73-FF (1)(i) requires that in order to incur the disqualification, the person 'is a defaulter of any society' and the explanation is inclusive of certain contingencies, which may or may not refer to the default committed in the past. Obviously, this inclusive definition cannot be said to mean a perpetual disqualification to a person, who had been at some time in the past, a defaulter within the meaning that is given in clause (c)(ii) of the explanation to Section 73FF(1)(i). This discussion would make it clear also that the disqualification contemplated by sub-section 73-FF(1)(ii) is a temporary disqualification for a particular election and that has reference to a particular point of time. It is not that the disqualification spoken of there is not curable at all times. The explanation cannot be const rued to mean that a person, who was a defaulter say about 10 to 15 years, ago, and who had since paid all of his dues, could be treated as a defaulter for the elections held 10 to 15 years after the default, if the payments were already made by him in the previous years. To conclude, it may be said that the disqualification of being a defaulter is curable one.
17. If that disqualification is a curable disqualification, there is no reason to suppose that a person who has with awareness or with unawareness remained in arrears of the dues 'to the society till the date on which he filed the 'nomination should not be allowed to mend this mistake and do away with the temporary curable disqualification that he had earned. If this is so, there is no reason to suppose that the Returning Officer has to consider thequestion of disqualification with reference to the date on which the nomination paper was lieu and not with reference 10 the date onwhich the decision of the scrutiny was to berecorded.
18. The Civil Court shave always resortedto the doctrine of moulding the relief in accordance with the events occurring pending the proceeding. In Ramesh kumar v. Kesho ram : AIR1992SC700 , the Supreme Court' had held that where the events had occurred outside the court on account of acts of the parties, the party seeking relief could bring them on record and the Court was bound to decide the case, with reference to the subsequent events. Where such changes have occurred due to legislative Acts passed since the fifing of the suit, the Nagpur High Court held in Chhotekhan v. Mohd. Obedullakhan AIR 1953 Nag 361 , that it was open even to the appellate Court to give the necessary relief to the parties in the light of the legislative changes. In cases of suits filed against licencees or lessees, the aforesaid principle of moulding has been followed in H.V. Rajan v. C.N. Gopal, : AIR1975SC261 and in The Tata Iron and Steel Co. Ltd. v. Abdul Ahad and Ors., : AIR1970Pat338 . Under the Bombay Rents Hotel and Lodging House Rates Control Act, where the possession of the premises is sought by the landlord on the ground of bona fide requirement, the Supreme Court held that the Court had to modify the decree and give relief after moulding the decree. M.S. Variety Emporium v. V.R.M. Ibrahim, : [1985]2SCR102 . In the context of insolvency proceedings, the principle was applied in Subbraiah v. Ramasami : AIR1954Mad604 (FB).
19. We are aware that the fact that the above mentioned decisions are decisions mostly under the provisions under Order VII, Rule 7 of the Code of Civil Procedure. We are also aware to the fact that the Returning Officer appointed for the purposes of holding the elections in question, is not a Court and the provisions of the Code of Civil Procedure would not govern a proceeding or the inquiry held by him. We are further aware of the principle that contesting the election or, for that matter, getting elected to a particular post, is not a fundamental right and, therefore, the Election Law is to be construed very strictly. But; when an executive authority is to pass certain orders under the Election Law, in respect of which the statute or the Rules framed thereunder do not provide any guide-line, the principle underlying the doctrine of moulding the reliefs in consonance with the future developments may be applied as far as that can be done without causing any injustice to anybody. Rule 23(4) permits such Officer explicitly not to reject any nomination paper on the ground of any defect, which is not of a substantial character. Again, proviso to Rule 23(5) permits him to allow the candidate against whom the objection has been taken to rebut the objection. The expression 'rebut' necessarily implies tendering of material which could show that the disqualification did not subsist at the time at which the orders were to be passed by the Returning Officer,
20. It may be noted that in any event, permitting an eligible member to contest the election does not mean injustice to the other contestants or the body of members in general. Likewise, permitting a member. Otherwise eligible, a to contest the election to remove the curable disqualification before the date of the decision to be recorded by the Returning Officer does not necessarily mean any injustice to the rival contestants or to the general body of the members. Again, if a person, having an alleged disqualification, is wrongly allowed to contest the election, and if he is elected, the aggrieved party is not left by the Statute without any remedy. The Act does provide an adequate remedy in that behalf. Therefore, we do not see any legal hurdle in holding that a member, who was temporarily disqualified on account of a curable disqualification, could be allowed to mend the matters and to get wiped the temporary curable disqualification before the decision to be recorded by the Returning Officer.
21. The learned Counsel for the petitioner submitted that there is no ruling of any High Court or the Supreme Court -on the point involved, though there were some decisions recorded by various Co-operative Tribunals. On the other hand, Mr. Eknath Suwant, the learned A.G.P., wanted to rely upon the rulings in Pashupati Nath v. Hari Prasad, : [1968]2SCR812 and Sheik Abdul Raheman v. and Sheik' Abdul 'Raheman. v Jagatram, : [1969]3SCR597 .'The reported ruling of the Maharashtra Co-operative Tribunal appears in V.S. Gurav v.'CTJ.182) also was referred to.
22. The decisions given by the Supreme Court are obviously distinguishable. In Pashupati -Nath's case : [1968]2SCR812 , the law required making a subscription on oath or affirmation on the nomination paper, which was to be filed within a time fixed by the authority. The nomination of a candidate had come to be rejected as he had not made and subscribed the requisite oath or affirmation as enjoined by clause (a) of Art. 173 of the Constitution, either before the scrutiny of the nominations or even subsequently on the date of the scrutiny. The Supreme Court held that the candidate, who had failed to do so was not entitled to do so when the objection was taken before Returning Officer on the date of the scrutiny and, therefore, he had become disqualified to be chosen to fill the seat within the meaning of Section 36(2)(a) and further, his nomination paper was liable to be rejected. The decision of the Supreme Court proceeded presumably on the ground that in the absence of oath or affirmation subscribed to the nomination paper as required mandatorily by the law, the nomination paper was not valid at all and, further, that the said defect was not curable. Some what similar were the facts in Sk. Abdul Raheman's case. Because, in that case also, there was failure to subscribe the oath or affirmation before the authorised officer. Following the above mentioned ruling of Pashupati Nath's case, it was held that the nomination paper was liable to be rejected. In the present case, it is nobody's contention that there was no legal tender of the nomination paper as required by law. The objection was only regarding an alleged disqualification, which, has pointed above, was a temporary and curable disqualification. The petitioner was entitled to rebut that objection before the Returning Officer himself. He did so by making the payment to the Karkhana and produced evidence in support of that before the Returning Officer. The Returning Officer had declined to look into the evidence, because the payment was made subsequent to the last date of filing of the nomination paper, though neither thesection nor the relevant Rule contained any positive direction in that behalf. May be that he was guided by the ruling of the Maharashtra Co-operative Tribunal, referred to above. But, he has not recorded so any where. Such facts would not be governed by the principle which was laid down by the Supreme Court in the above mentioned two cases.
23. Coming, then, (o the decision of the Maharashtra State Co-operative Appellate Court in V.S. Gurav's case 1986 CTJ 182, it is seen that that Court had relied upon the earlier decisions of the Bombay Co-operative Tribunal, though there was one contrary decision of the same Tribunal in Digambar Eknath Mali v. Namdeorao Kashinath Patil case is one under Rule 58(1)(a), which is provision similar to the provision contained in the present Rules. But, it appears that the points which were raised before us in the context of the point that we are deciding, were neither raised nor considered by that Court. No arguments were advanced before us on the basis of the rulings, which were relied upon in support of the decision. But, for the reasons recorded above, we are not in agreement with the view taken by the Co-operative Court, in the aforesaid ruling given in Gurav's case.
24. A question, then, was posed as to why the date of the decision to be given by the Returning Officer on the objection should be the turning point in the matter. It was suggested that as the first meeting of the elected managing committee is supposed to take place, under the law, some time after the declaration of the results at the election, such a defect could possibly be cured at any date before the first meeting of the managing committee was held or before the term of the managing committee commenced as per law. Obviously enough, such a construction would not be permissible on the rule in question, because, as already pointed out earlier, the point to be decided by the Returning Officer at the inquiry to be held under Rule 23(2)(a) of the Maharashtra Specified Co-operative Societies Elections to Committees Rules was, whether or not, the candidate is disqualifiedfor being chosen to fill the seat by or under the Act.' Once the finding is recorded against him, in this respect, the same shall, subject to the decision of the appeal or writ petition, shall be final for the purposes of facilitating the elect ion. It is on the basis of this decision, that the list of the contesting candidates is to be prepared under Rule 26 and is to be published under Rule 27, where a poll be-'g comes necessary. It may be noted here that a provision similar to Rule 56-X of the Maharashtra Co-operative Societies Rules, 1961, does not appear in the Maharashtra Specified Co-operative Societies Elections to Committees Rules, for requiring the Returning Officer to declare the result forthwith, where polling is not necessary on account of the number of candidates in the constituencies, whose nominations have been accepted is equal to or less than the number of the seats to be filled. Under the Maharashtra Specified Co-operative Societies Elections to Committees Rules, the declaration of the result is to be made under Rule 61 only and a considerable procedure is involved therebefore, in the context of constituencies, where election has been felt necessary. If any objection is to be taken for the stages which follow the stage of decision under Rule 23 of the Maharashtra Specified Co-operative Societies Elections to Committees Rules or Rule 56-R of the Maharashtra Co-operative Societies Rules, 1961, that can probably be raised only in the election petition, which can be filed after the declaration of the results. Therefore, the date on which the Returning Officer is to record his decision under Rule 23 of the Maharashtra Specified Co-operative Societies Elections to Committees Rules and Rule 56R of the Maharashtra Co-operative Societies, Rules 1961, would be the crucial date and that date cannot be allowed to be crossed for the purposes of finalising and publishing the list of the candidates contesting the elections.
25. The principle of co-operation itself rests on the sound principles of Democracy. The success of co-operative movement lies in not debarring the members eligible to contest, from contesting the elections. In view of the considerations discussed above, the disqualification regarding the default is a temporary and curable disqualification. That provision is not a penal provision. So long as the person, who is alleged to be a defaulter wants to mend his mistake and pay the amount due to the Karkhana or the society, as the case may be, and who, in fact, makes the payment before the decision to be recorded by the Returning Officer on the objection taken against him in the context of the alleged default, need not be ousted from the entire process of contesting the election. At the cost of repitition, it may be pointed out that Section 73-FF(1) or Rule 23(2) of the Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971, do not speak of the date on which the person shall be considered as disqualified for the purposes of contesting the election so as to exclude him from the process of election and a distinction has got to be made in this context, between the exclusive' from the membership of the managing committee and exclusive from the process of election of members to the managing committee.
26. It was, then, submitted that the Rules do not empower the Returning Officer to allow a person who has filed nomination to cure his default by making the payment before the date of decision on the objection taken to his nomination paper on the ground of default and therefore, such a power cannot be conferred implicity on the Returning Officer. With respect, we see a fallacy in this argument. No Section nor any rule empowers the Returning Officer to reject nomination papers filed by a member, who was in arrears of the amounts due to the society except on the date on which the decision on the objection regarding his alleged default was to be recorded. If the relevant date for the purpose is considered to be the date on which the Returning Officer records his decision, there would be no question of the Statute or Rules empowering the Returning Officer to condone the disqualification on the ground of default (where the payment is already made before the decision) or to reject the nomination paper on the ground that on the date of filing the nomination papers, the person was a defaulter on account of being on arrears of dues to the society as on the date of filing ofthe nomination papers. The contention raised, in this behalf is therefore, rejected.
27. There is one more aspect to the whole issue, namely, whether it would be open to the Court to condone the delay made in payment of arrears and allow the candidate to contest the election, when the aforesaid fact was brought to his notice at the time of scrutiny and when he had mended the wrong. Neither any explicit provision in the Maharashtra Cooperative Societies Act restricts such a power of the Court in the interest of the cooperative movement nor is any other principle indicated on account of which, the Court shall retrain from exercising such a power. It is true that the Rules regarding election are to be construed very strictly. But, when the Rules leave a managing on account of the wording in which they are drafted, for consideration of such an eventuality, the Courts would, ordinarily exercise such discretion to ensure that the co-operative principle succeeds ultimately. The Court shall not encourage elimination of candidates on hyper-technical grounds of the type that are entertained and sustained by the Returning Officer in the present case.
28. In view of these considerations, the writ petition must succeed. We allow the same and set aside the impugned orders.
We direct the Returning Officer to accept the nomination of the petitioner and allow him to contest the elections.
It is made clear here that such an order is being passed, because the election process is not likely to be affected by such acceptance of nomination, the final date of withdrawal of nomination being 11th July, 1994.
Rule made absolute accordingly.
Petition allowed.