C.S. Dharmadhikari, J.
1. As all these writ petitions involve common questions of law and fact they were heard together and are disposed of by this common judgment.
2. Respondent No. 3 in Writ Petition No. 943 of 1988 i.e. Shri Jagdamba Sahakari Sakhar Karkhana Ltd. is registered under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred as to the Act) as a Processing Society. It has set up a sugar factory with crushing capacity of 850 m.t. per day. The area of operation of the society extends to Karjat Taluka of Ahmednagar district. At the relevant time the society had 4200 individual members and 26 Co-operative Society members. The said society is a specified society within the meaning of section 73-G of the said Act. In the elections held on 26-3-1983 the Directors of this specified society were elected. One Shri K.R. Deshmukh was elected to the Board of Directors both from Producers constituency as well as from the Co-operative Societies constituency and, therefore, he was required to vacate one seat. On 30-3-1983 Shri Deshmukh resigned as Director from the Co-operative Societies constituency. Consequently a vacancy arose and fresh election became necessary. On 26-12-1983 section 73(1) was added by Maharashtra Act No. 45 of 1983 which states that upon resignation of a candidate who is elected to more than one seat, next candidate securing highest number of votes shall be declared elected. However, since the said amendment had no retrospective effect, a by-election under rule 72 became necessary. Practically after a period of 3 years on 6-1-1986 the Collector of the district declared election programme under rule 16 of the Rules, for electing one person from the Co-operative Societies constituency, on the basis of voters list as on 31-12-82. The Collector did not prepare any fresh voters list under rule 4(2) of the Rules. According to the petitioners, after 31-12-1982, out of 25 Co-operative Societies member, 2 had ceased to be voters and new members were also were enrolled, two of them being petitioners 1 and 2 in the said writ petition. Respondent Nos. 4 and 6 i.e. Takale and Bavedkar filed their nomination papers Shri Bavadkar withdrew his nomination as a delegate of Mirajgoan Bhag Dudh vyavasaik Sanstha Ltd. As a result of this only one candidate remained in the field i.e. respondent No. 4 Shri Takale. Therefore he became entitled to the declared elected un-opposed for the vacancy in the Co-operative Societies constituency. The petitioners were entitled as members after 31st December 1982. However, their names were not included in the voters list. On 29-1-86 the Collector declared Shri Takale elected unopposed in the said by election. According to the petitioners since the petitioners were neither voters nor candidates they were even deprived of their right to challenged the election in view of the provisions of rule 74 of the Rule. Hence they have no other alternate remedy but to file present writ petition. It is not necessary to reproduce the facts of other writ petitions since in all these writ petitions mainly the validity of section 144-T of Act is challenged.
3. Section 144-T of the Act, which is germane for deciding the issue reads a under :---
'144-T- (1) Notwithstanding anything contained in section 91 or any other provisions of this Act any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held (or to an officer not below the rank of Additional Commissioner or a Division authorised by the State Government in this behalf (hereinafter in this section either of them as the context may require is referred to as 'the specified officer')
(2) Such reference may be made by an aggrieved party by presenting an election petition to (the specified officer), within a period of two months from the date of declaration of the result of the election,Provided that, (the specified officer) may admit any petition after the expiry of that period, if the petitioner satisfies (the specified officer) that he had sufficient cause for not preferring the petition within the said period.
(3) In exercising the functions conferred on him by or under this Chapter, (the specified officer) shall have the same powers as are vested in a Court in respect of :---
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of any person and examining him on oath;
(c) compelling discovery of the production of documents; and
(d) issuing commissions for the examination of witnesses.
In the case of any such affidavit, an officer appointed by (the specified officer) in this behalf and may administer the oath to the deponent.
(4) Subject to any rules made by the state Government in this behalf any such petition shall be heard and disposed of by (the specified officer) as expeditiously as possible. An order made by (the specified officer) on such petition shall be final and conclusive and shall not be called in question in any Court'.
Rule 74 lays down that an aggrieved party can be a candidate or a voter. Since the names of the petitioners were not in the voters list, they were not entitled to file an election petition though according to them they were aggrieved parties.
4. This Court had an occasion to consider somewhat similar question in Writ Petition No. 820 of 1980 Shri Annasaheb Mahaniraj Kharat and anr v. Shri Bankar Balasaheb Ganpat and others, decided on 13th November, 1980 by a Division Bench consisting of Deshpande and Kotwal, JJ. Co-operative Law Chronicle Vol. IV page 267. This is what the Division Bench has observed in paras 6 and 7 of the said judgement :
'6. The finding of Additional Commissioner that a voter from the individual member's constituency cannot challenge the election of a person from the Society members' Constituency also appears to us to be untenable. Section 144-T(2) contemplates dispute relating to any election being raised by 'an aggrieved party'. The word' aggrieved party' is not defined in the Act. Now, admittedly a person can be regarded as voter in the election list only if he happens to be a shareholder and a member of the said society of the Karkhana. Prima facie, every member and share holder of the societies interested in knowing who the Directors of the said society are and whether good and competent persons are elected on the Board or not. In the event of any disqualified person getting elected in spite of statutory prohibition against his eligibility, to election, every member is entitled to challenge such election, as it cannot, but be said to affect the interest of such member in the society. In this sense a member or shareholder can legitimately be said to have been aggrieved by the election of any wrong type of member without regard to whether he is elected from the individual member's constituency or society members' constituency. Mr. Mandlik and Mr. Kulkarni could not draw our attention to any provision in the Act or the Rules militating against the plain and obvious meaning of the word 'aggrieved party'. This meaning gets some support from the wording of section 144-W, which enables any such election petitioner to get a declaration of himself being elected or any other person being elected. Prima facie, this section enables a voter even of individual members constituency to seek in the election petition a declaration that some other person than the one elected from the society members' constituency be declared as having been elected.
7. Mr. Mandlik drew our attention to Rule 74 of the Rule dealing with the elections to the Specified Co-operative Societies. Rule 74, no doubt, indicates as if the voter is competent to file the election petition. Mr. Mandlik contends that when rule 74 refers to the voters, it is implied that such voter can challenge the election only of the constituency of which he happens to be the voter and it will not be open for him to challenge the election of a constituency in which he does not possess any voting right. The contention is apparently plausible. However, the language of Rule 74 does not expressly restrict rights of voter to challenge the election only of such member who is elected from the constituency of which he happens to be the member. Secondly and more importantly, the said Rule 74 shall have to be read alongwith the provisions of section 144-T(2) of the Act, which contemplate right of election petition in every aggrieved member. As discussed earlier, every shareholder can be said to be an aggrieved person notwithstanding whether the person elected happens to be from his constituency or any other constituency'.
5. Apart from this it is by now well settled that the rule should be consistent with the provisions of the Act, and if a rule goes beyond what the Act contemplates, the rule must yield to the Act. Section 73-G, deals with the conduct of elections to the Committees of specified societies. According to the learned Counsel for the petitioners it is quite obvious that the Committee is to be elected by the general body of the members of society. If a person is a member of a society and is wrong fully excluded, then he is a 'person aggrieved' within the meaning of section 144-T of the Act. Section 144-X empowers the State Government to make rules to regulate various stages of elections, including preparation of list of voters. Therefore, depending upon the facts and circumstances of each case if it could be demonstrated that a member who intends to file an election petition, is an aggrieved party, then notwithstanding rule 74 of the rules, he will be entitled to file an election petition. No general rule can be laid down in that behalf since it must depend upon the facts and circumstances of each case. However, we do not propose to deal with this question in any further details, since it is not necessary to do so for the decision of these writ petitions.
6. The petitioners have then challenged the provisions of section 144-T of the Act on the ground that it is ultra vires of Article 14 of the Constitution of India. It is contended by Dr. Naik the learned Counsel appearing for the petitioners, that prior to the coming into force of section 73-G of the Act all election disputes were filed before the Co-operative Court under section 91 of the Act. The Co-operative Courts are constituted under section 91 of the Act. Decisions of the Co-operative Courts are subject to appeal or revision by the Maharashtra State Co-operative Appellate Court. Co-operative Court exercises almost same powers as are exercised by the Civil Court under section 9 of the C.P.C. Co-operative Appellate Court constituted under section 149, exercises all powers of Appellate Court as is clear from explanation to section 149 of the Act. Therefore, the Co operative Court as well as the Co operative Appellate Court exercise judicial powers. This is clear from the decisions of the Supreme Court in : 1967CriLJ1380a . Thakur Jugal Kishore Sinha v. The Sitamarhi Central Co-operative Bank Ltd. and anr, : [1979]2SCR1023 . The Gujarat State Co-operative Land Development Bank Ltd. v. P R. Mankad and anr., and the decisions of this Court in : AIR1975Bom143 Bapusaheb Balasaheb Patil and ors v. State of Maharashtra & others, : AIR1984Bom419 . Maharashtra Co-operative Housing Finance Society Ltd.. Bombay & ors v. V.S. Loni & anothers. Further as held by this Court in 1987 Mh L.J. 191 State of Maharashra v. Labour Law Practitioners Association, Bombay & others, and : 1987(3)BomCR307 : Krishna Chandra Sharma v. Sind Hyderabad National Collegiate Board. Appointment to the Co-operative Courts will have to be made in consultation with the High Court. Even this consultation will have to be meaningful and effective as held by the Supreme Court in the State of Kerala v. Lakshmikutty & others : [1987]1SCR136 and in S P. Sampath Kumar v. Union of India & others, A.I.R. 1987 S.C. 386. the obligation of the State Government is not merely to lay down procedure for holding free, fair and just elections but also to provide an adequate remedy to challenge it. Under section 144-T of the Act, power to adjudicate disputes relating to election of specified societies is conferred upon the Commissioner of a division or officer not below the rank of Additional Commissioner of the divisions known as specified officer. They are Revenue Officers. No qualifications have been laid down for their appointments, nor their appointments are made in consultation with the High Court. Therefore the remedy provided under section 144-T of the Act is just and adequate. According to the learned Counsel providing for a remedy under section 91 so far as all other Co-operative Societies are concerned, and excluding the specified societies form its ambit, created hostile discrimination . Thus, in substance it is contended by the learned Counsel, that under section 144-T of the Act neither an adequate machinery nor adequate procedure is prescribed for filing of election disputes or its adjudication. Co-operative Courts exercise unlimited pecuniary jurisdiction to deal with the disputes which are Civil in nature, including matters pertaining to elections. Co-operative court has all powers of Civil Court. Then an appeal is provided against the decision of a Co-operative Court to Appellate Court. As against this, decision of the Commissioner or the specified officer under section 144-T is made final. No qualifications are prescribed for the appointment of Commissioner or Additional Commissioner. They need not have any judicial background although they are exercising judicial powers while adjudicating election disputes. The Commissioner is burdened with various responsibilities and in admission is further burdened with adjudication of election disputes. Therefore, no proper or adequate remedy has been provided for adjudication of election disputes, so far as specified societies are concerned. Further grounds on which election could be challenged or set aside are enumerated in rule 81 of the Rules. But the rules cannot limit the grounds otherwise available under section 144-T of the Act. Therefore rule 81 is also beyond the rule making power.
7. While under section 144-T, it is provided that an election petition could be filed before the Commissioner or the specified officer, rule 73 restricts it to Commissioner only. Then again the provisions which should appear in the Act itself are provided by the rules i.e. Rules 74, 78 to 87 of the Rules. In fact these rules could not have been made in exercise of powers conferred either under section 144-T or under section 144-X or section 165 of the Act. The said rules are, therefore, beyond the Rule making powers and ultra vires Article 14 of the Constitution of India.
8. It was then contended that the remedy provided under section 152-A of the Act is equally arbitrary. While an election petition under section 144-T could be filed before the Commissioner or the specified officer, an appeal under section 152-A could be filed only before the Commissioner. While an election petition under section 144-T could be filed within 2 months no time limit is prescribed for filing an appeal under section 152-A. Though an obligation is cast upon the Commissioner to decide the appeal within 10 days, no time limit is prescribed for filing appeal qua specified society. This appeal is provided only against the order of rejection of nomination paper. It is then laid down that the decision of the Commissioner in appeal shall be final and no further appeal or revision would lie against the said decision. Under section 91 there is an express provision which lays down that rejection of nomination paper at the election to a committee of the society shall not be deemed to be a dispute for the purpose of said section. Such a provision is not there in section 144-T It is then contended that though Rules i.e. rules 73 to 87 are bodily lifted from the Representation of People Act, a remedy of election petition similar to the said Act is provided. Therefore, section 144-T does not provide for any adequate remedy for challenging the election. Hence on that count also it is violative a Article 14 of the Constitution being unreasonable, and arbitrary. In support of this contention Dr. Naik has placed reliance upon the decision of the Supreme Court in A.I.R. 1980 S.C. 1989 Minorva Mills Ltd. & ors v. Union of India & ors. : [1968]3SCR662 Dhulabhai etc. v. State of Madhya Pradesh & another, : [1982]1SCR882 Sayed Mohamed Baquir v. State of Gujarat, and A.I.R. 1987 S.C. 386. Sampath Kumar v. Union of India & ors. It is then contended that so far as remedy for challenging election disputes is concerned, no distinction could have been made between the specified societies with other societies and on that count also section 144-T is discriminatory. Learned Counsel appearing for the petitioners in other petitions have adopted the arguments advanced by Dr. Naik.
9. On the other hand it is contended by Shri Bobade, learned Advocate General and Shri Raghuwanshi that Chapter 11-A deals with the elections to committees and officers to the specified societies. A special provision has been made for these specified societies. Classification made in that behalf is wholly valid and within the same class thee is no discrimination. The specified societies belong to separate and distinct class. Further comparison of two distinct provisions meant for two distinct categories is not relevant for deciding the validity. Finality attached to a decision under section 152-A of the Act is only adhoc. If there is any inconsistency in the substantive provisions of the Act, and the Rules, then the provision of the Act will prevail. It cannot be forgotten that the Commissioner or the Additional Commissioner are high ranking officers. Therefore powers of adjudication are conferred upon very high officers. The provisions of section 152-A will have to be read as a whole and if so read it does provide for limitation for filing an appeal and, therefore it cannot be said that the provisions of section 144-T or section 152-A are in any way unreasonable or arbitrary or discriminatory. In support of this contention the learned Advocated General has placed reliance upon the decisions of this Court in : AIR1988Bom72 Bassein Catholic Co operative Bank Ltd. & any. v. State of Maharashtra & others 1983 Mh.L.J. 719 Shri Siddheshwar Sahakari Sakhar Karkhana Ltd. and anr. v. State of Maharashtra and another. 1987 Mh.L.J. 1065 Pruthwiraj Parmeshwarlal Jaiswal and anr v. Shrungas Shivlal Thakare and others, and the decisions of the Supreme Court in : [1985]3SCR614 M/s. Babubhai an Co. and ors v. State of Gujarat and others, : [1988]1SCR1 Prabhakaran Nair etc. v. State of Tamil Nadu and others and : [1988]2SCR759 . S.T. Muthusami v. K. Natrajan and others.
10. It is by now well settled that a right to vote or to stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it. Where a right or liability is created by a statute which gives a special remedy for enforcing it, then the remedy provided by it also can be availed of. The right to contest election or to file an election dispute is not common law fight and, therefore, so far as the specified societies are concerned, said right will have to be exercised under section 144-T of the Act. Further as observed by the Supreme Court in M/s Babubhai and Co. case, mere absence of a corrective machinery by way of appeal or revision by itself would not make the powers unreasonable or arbitrary, much less would render the provisions invalid. Regard will have to be had to several factors, such as, on whom the power is conferred whether on a high official or a petty officer, what is the nature of the power, whether the exercise thereof depends upon the subjective satisfaction of the authority or body on whom it is conferred or is to be exercised objectively by reference to some existing facts or tests, whether or not it is a quashi judicial power requiring that authority or body to observe principles of natural justice and make a speaking order etc. Further it cannot be forgotten that the said order is subject to judicial review under the writ jurisdiction of the High Court on the ground of perversity, extraneous influence, malafides and other blatant infirmities. In our view the law laid down by the Supreme Court in M/s. Babubhai & Co. case aptly applies to the present provisions also.
11. This Court had an occasion to consider the validity of section 73-G of the Act in Bassein Catholic Co-operative Bank Ltd. & anr's case. As to why Legislature felt it necessary to enact these provisions is clear from the statements of Objects and Reasons, which read as under :
'A large number of complaints are received regarding unfair practices followed in the elections of co-operative Institutions. This has led to a number of disputes being filed before the Registrar every year. Very often unscrupulous elements taken advantage to perpetuate their control over the society. This has been rendered possible due to the absence of any regular election machinery to conduct elections in a fair and impartial manner. It is now proposed to regulate the elections of bigger cooperative institutions such as those having jurisdiction covering a Taluka or more area or those whose share capital is more than Rs. five lacs and to have the elections held under the control of the Collector. It is also proposed to hold elections trienially in such institutions. A limit is sought to be placed on the extent to which a candidate may incur expenditure for election purposes'.
Election to such societies are held under the control of the Collector, an independent person. Since an impartial and independent machinery is provided for conducting the election to the Committee of the specified societies, Legislature thought it fit to create a distinct forum for adjudicating election disputes. As is clear from the objects and reasons a large number of complaints were received regarding unfair practices followed in the elections to the co-operative institutions. This had led to a number of disputes being filed every year. Very often unscrupulous elements take advantage to perpetuate their control over the society. This has been rendered possible due to the absence of any regular election machinery to conduct elections in a fair and impartial manner. Therefore it was thought necessary to have separate provisions to regulate elections of bigger cooperative institutions. Chapter 11-A. has been enacted with that purpose Section 144-T was enacted to provide for a speedy machinery for adjudication of election disputes relating to big institutions. The adjudication contemplated is quasi judicial and the Commissioner or the Specified Officer is bound to follow the principles of natural justice while adjudicating the disputes. Sub-section (3) of section 144-T provides that in exercising the functions conferred under this Chapter, the specified officer will have the power as are vested in a Court and then those powers are enumerated Under sub-section (2) of section 144-T it is provided that such election petition shall be disposed of as expeditiously as possible. The power is conferred on high placed officers. The power is to be exercised objectively and the Commissioner or the specified officer is expected to observe the principles of natural justice and pass a speaking order. Therefore mere absence of corrective machinery by way of appeal or revision, will not render the provision arbitrary or invalid. More so when the said order is amenable to writ jurrisdiction of this Court under Article 226 or 227 of the Constitution of India.
12. It is no doubt true that section 91-A of the Act provides for constitution of co-operative court etc. Qualifications for appointment to the said court or appellate court are also prescribed by Rules. Under section 91 powers have been contserred upon the co-operative Court which are normally exercised by the civil Court. The said courts exercise unlimited pecuniary jurisdiction. It is true that it is obligatory on the part of the State Government to make appointments to the said courts inconsultation with the High Court. This position is very clear from the decisions of this Court in State of Maharashtra v. Labour Law Practitioners Association Bombay & others, 1987 Mh.L.J. 191 and Krishna Chandra Sharma Director of Physical Education, K G. College, Bombay v. Sindh Hyderabed Notional Collegiate Board Bombay 1987 Mh.L.J. 782. It is equally true that this consultation with the High Court should be effective and meaningful as held by the Supreme Court in State of Kerala's case and S.P. Sampath Kumar's case (supra). However, it cannot be forgotten that only limited powers of adjudicating election disputes qua specified societies have been conferred upon the Commissioner or the Additional Commissioner under section 144-T of the Act. Under Chapter 11-A elections are to be conducted under the control of the Collector. In the hierarchy, the commissioner and the Additional Commissioner are superior officers. Therefore the Legislature thought it fit to confer power of resolving disputes relating to the election to the specified societies, upon them. Then authority chosen is higher in rank to the Collector, who is expected to conduct the elections. Therefore, we do not find any infirmity in choosing such high officers for resolving election disputes. It cannot also be forgotten that the power is conferred upon the pre-existing authority appointed under the provisions of the Maharashtra Land Revenue Code. Hence it cannot be said that the appointment of the Commissioner or the Additional Commissioner is in any way arbitrary or section 144-T does not provide for just and adequate remedy to resolve the election disputes.
13. In this context it cannot be forgotten that the election of office bearers or committee to other societies are held under their own by-laws and not necessarily under the control of independent and impartial authority like the Collector. Therefore, elections for other societies cannot be compared with the elections to the specified societies which are to be conducted under Chapter 11-A of the Act. Disputes relating to elections to specified societies ad other societies are not comparable. The classification has got a nexus to the object of the Act. The special procedure is applicable to specified societies, which belong to different and special class. Therefore it is possible of us to accept the contention that it is in any way unjust, unreasonable, inadequate or discriminatory.
14. Initially it appears that no appeal was provided against the rejection of nomination papers so far as the specified societies are concerned. However, section 152-A came to be amended which now provides that in the case of a society specified by or under section 73-G an appeal shall lie to the Divisional Commissioner who shall dispose of such appeal within ten days from the date of receipt of such appeal and the decision of the Commissioner in appeal shall be final and no further appeal or revision shall lie against the decision of the Division Commissioner in such appeal. To say the least finality attached to this decision in appeal is adhoc and interim. The purpose for which such adhoc finality attached is quite obvious. As held by this Court in Pruthwiraj Parmeshwarlal Jaiswal & anr's case, finality is adhoc and is operative only upto the stage of completion of election process. Intention behind the same being that election process should not be stilled by questioning the decision at the higher terms or in civil Court or In any other manner at that stage.
15. It is not correct to say that in case of society specified by or under section 73-G on period for filling appeal is provided by section 152-A of the Act. Section 152-A will have to be read as a whole and harmoniously. Three days period provided for filling appeal, by necessary implication, will govern the appeal qua specified societies also. It is true that though section 144-T came to be amended, the State Government has not amended Rule 73. However, it is quite obvious from the said rule that the election petition is to be filed in accordance with the provisions of section 144-T Therefore by necessary implication, rule also stands amended and inaction on the part of the State Government to correspondingly amend Rule 73 will not affect amended provisions of section 144 of the Act, which confers upon the officer not below the rank of Additional Commissioner of the division authorised by the State Government in that behalf. It is by now well settled that if there is any inconsistency or repugnancy between the substantive provisions of the Act and the rules, then it is the substantive provision which must prevail.
16. Other rules dealing with election petitions have been framed by the State Government under section 144-X of the Act which lays down that without prejudice to any other power to make rules contained elsewhere in the Act, the State Government may make rules consistent with the Act generally to provide for and to regulate all or any of the other matters relating to the various states of the elections, including preparation of list of voters. A contention is raised before us that section 144-T is generally worded whereas rule 81 and others provide for the grounds on which alone election could be set aside. As a matter of fact rule 81 practically covers challenges which could be raised in an election petition. If there are any other challenges which are not enumerated in rule 81 but could be raised under the substantive provisions of section 144-T of the Act, then the petitioner is not debarred from raising the said challenges. The contention that since practically the rules relating to filing of election petition and its trial have been bodily lifted from the Representation of People Act, the Legislature was obliged to create similar forum form filing the election disputes or petition is also wholly untenable. As observed by the Supreme Court in Prabhakaran Nair etc.'s case Article 14 of the Constitution does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different Article 14 can have no application.
17. As already observed since the specified societies belong to a class which is special and distinct from other class of societies, by comparison between two different provisions, these provisions cannot be declared as ultra vires. The area and field covered by these provisions is distinct and separate. By process of comparative study of two distinct and separate provisions, section 144-T cannot be struck down as violative of Article 14. The classification made in that behalf is reasonable and has nexus with the objects sought to be achieved by chapter 11-A of the Act. Hence we find no substance in the contentions raised by Dr. Naik that the provisions of section 144-T are violative of Article 14 of the Constitution of India.
18. In Petition No. 943 of 1986 election of respondent No. 4 as delegate of respondent No. 5 is also challenged on merits. It is quite obvious that the said election was a by -election. The Board of Directors was elected for a period of 5 years with effect from March 1988. Election programme for the by-election is co-terminous with the elected body. We are informed that fresh elections have also taken place. Therefore it is not necessary to go into the merits of the case. So far as other writ petitions are concerned, election petitions are already filed and are pending. Hence no interference is called for at this stage.
In the result, therefore, Rule stands discharged in all these writ petitions with no orders as to costs.
Interim stay to continue for eight weeks.