M.L. Dudhat, J.
1. These two writ petitions arise out of the order passed by the Co-operative Tribunal on August 16, 1991 confirming the decision of the Co-operative Court dated July 19, 1991. The only limited question before me in these writ petition, at the admission stage, is whether respondent No. 1, one of the share holders who has filed the election petition, has got right to inspect the counter-foils of the ballot papers.
2. Respondent No. 1 filed a dispute challenging the election of present petitioner who was an elected chairman of respondent No. 13, the Bank also the elections of nine Directors, being respondent Nos. 2 to 10 in the present petition. The elections of the Chairman and the Directors of respondent No. 13, the Bank, were held on April 29, 1991 and the results were declared on April 30, 1991. As per the said results, the petitioner was declared as a Chairman of the Bank and respondent Nos. 2 to 10 were declared as the Directors along with the three other Directors. After filing the aforesaid dispute, respondent No. 1 filed an interim application for the appointment of Receiver/Commissioner for taking charge of the ballot-papers and the counter-foils of the ballot papers. In the said application the petitioner also prayed for grant of inspection of the counter-foils of the ballot-papers. The co-operative Court by its decision dated July 19, 1991 appointed one Mr. Denzil D'Mello, Advocate, as the Court Receiver to take charge of the papers pertaining to the election programme, used and unused ballot-papers, ballot-boxes document recording the election results, counter-foils of the ballot-papers, papers containing specimen signatures of the members and also further directed to seal the said documents and produce them before the Court. In the said order, the trial Court also granted inspection of the counter-foils of the ballot-papers to the disputant. Against this decision of granting respondent No. 1's application, dated July 19, 1991, given by the Co-operative Court No. 1, the petitioners preferred an appeal before the Co-operative Tribunal and the said Tribunal by the decision dated August 16, 1991, confirmed the order passed by the Co-operative Tribunal, present Writ Petition No. 3845 of 1991 is filed by the present petitioner who was elected Chairman of respondent No. 13, the Bank. Out of the nine Directors, against whom the original dispute was filed, eight Directors also preferred an appeal before the Co-operative Tribunal against the order dated July 19, 1991, and by a common judgment, along with the appeal filed by the present petitioner, the Co-operative Tribunal also confirmed the decision given by the trial Court dated July 19, 1991. The said Directors also preferred Writ Petition No. 4077 of 1991, against the order of the Co-operative Tribunal dated August 16, 1991. Since, both these writ petitions, in which the facts and the law points are common and both are filed against the common judgment, I am disposing of both these writ petitions by a common order.
3. I have heard the arguments advanced by Mr. Bhimrao N. Naik, the learned Counsel appearing on behalf of the petitioners in Writ Petition No. 3845 of 1991, and also by Dr. B.R. Naik, the learned Counsel appearing on behalf of the petitioners in Writ Petition No. 4077 of 1991. It was contended by the learned Counsel on behalf of the present petitioners that both the lower courts erred in law by allowing inspection of the counterfoils of the ballot papers. It was also contended on behalf of the petitioners that the election is governed by the special law and the principles of the general laws under the Code of Civil Procedure are not applicable in the election dispute, especially where secrecy is to be maintained. According to the petitioners, in order to maintain secrecy so as to see that the identity of the voter is not established, it is desirable that even the counterfoils of the ballot papers should not be allowed for inspection. According to the petitioners, the dispute filed by respondent No. 1 is blissfully vague. There are no specific allegations about the corrupt practice and, therefore, unless respondent No. 1 makes out a prima facie case, respondent No. 1 is not entitled to inspection of the counterfoils of the ballot papers. Allowing such inspection, according to the petitioners, will amount to roving or fishing enquiry and therefore, both the lower courts erred in granting such inspection. To support their contentions, both the learned Counsel appearing on behalf of the petitioner, relied on certain decision of the Supreme Court.
4. Mr. Shah, the learned Counsel appearing on behalf of respondent No. 1 in both these petitions, contended that the decision of both the courts below in allowing inspection, was legal, proper and in any case since the said decision is given at a interim stage, should not be interferred under Article 227 of the Constitution of India. It was further argued on behalf of respondent No. 13 is a notified society and the election of the said society is governed by section 73-IC of the Maharashtra Co-operative Societies Act, 1960, and more particularly by rule 56-A framed under the Maharashtra Co-operative Societies Rules, 1961. According to respondent No. 1, Rule 56-A lays down complete procedure about the elections of the notified societies. Rule 56-A-32 deals with the production and inspection of the election papers and the same reads as under:
'Production and inspection of election papers.--- (1) While in custody of District Election Officer---
(a) the packets of unused ballot papers,
(b) the packets of used ballot papers whether valid, tendered or rejected.
(c) the marked copies of the voters list, shall not be opened and their shall not be inspected by or produced before any person or authority except under the order of the Court or other competent authority.
(2) All other papers relating to the election shall be open to public inspection'.
It was contended on behalf of respondent No. 1 that the counter-foils of the ballot papers do not come in any of the above three clauses mentioned under sub-rule (1) of Rule 56-A-32 and, therefore, under sub-rule (2) of Rule 56-A-32, the counter-foils are the documents which are open public inspection and, therefore, respondent No. 1 is entitled to get the order of inspection about the same. Respondent No. 1 has also relied on Rule 93 of the Conduct of Elections Rules, 1961, framed under the representation of the People Act, 1951. The said Rule 93 is as under.
'Production and inspection of election papers.---(1) While in the custody of the district election officer or, as the case may be, the returning officer :---
(a) the packets of unused ballot papers with counter foils attached thereto ;
(b) the packets of used ballot papers whether valid, tendered or rejected ;
(c) the packets of the counterfoils of used ballot papers ;
(d) the packets of the marked copy of the electoral roll, or, as the case may be, the list maintained under sub-section (1) or sub-section (2) of section 152; and
(e) the packets of the declarations by electors and the attestation of their signatures;
shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under order of a competent Court.
(2) Subject to such conditions and to the payment of such fee as the Election Commission may direct---
(a) all other papers relating to the election shall be open to public inspection ; and
(b) copies thereof shall on application be furnished.
(3) Copies of the returns by the returning officer forwarded under Rule 64, or as the case may be, under clause (b) of sub-rule (1) of Rule 84 shall be furnished by the returning officer, district election officer, chief election officer of the Election Commission on payment of a fee of two rupees for each copy.
It was also contended on behalf of respondent No. 1 that by an amendment of December 23, 1971, more particularly to Rule 92(2)(c), the words 'the packets of the counterfoils of used ballot papers ' are added. In spite of the said amendment to Rule 93 of the Representation of People Act, 1951, Chapter V 'election to the notified societies' was introduced in the Rules framed under the Co-operative Societies Act on October 26, 1987, and the government thought it wise not to include counterfoils of used ballot-papers in Rule 56-A-32 sub-rule (1) and further introduced sub-rule (2) to Rule 56-A-32, allowing open public inspection in respect of all other papers not included in sub-rule (1) of Rule 56-A-32. According to respondent No. 1, in view of this specific provision and in the facts and circumstances of the case, the decisions cited by the petitioners in both the writ petitions are not applicable.
5. After going through the aforesaid Rule 56-A-32, prima facie, it appears that the counter-foils of used ballot papers are not included in Clause (1) of Rule 56-32 and, therefore, as per sub-rule (2) of Rule 56-A-32, the counterfoils of the used ballot papers will come in the category of other papers relating to elections which are open for public inspection.
6. Both the lower Courts, while disposing of the interim applications, have given proper reasoning and, therefore, I do not think that this is a fit case in which this Court should interfere with the said concurrent findings, given at the interim stage, under the writ jurisdiction. However, I may further observe that while giving the decision on July 19, 1991, the Co-operative Court No. 1 failed to exclude the packets of counterfoils of unused ballot papers from the inspection and, since, the said counterfoils of unused ballot papers come within the category of Rule 56-A-32(1)(a), the trial Court ought not to have granted inspection of the same. Mr. Shah, the learned Counsel appearing on behalf of respondent No. 1 also agrees with this legal position. Since, the Tribunal also has confirmed the decision of the trial Court dated July 19, 1991, by its order dated August 16, 1991, to that extent the said decision will have to be modified.
7. I, therefore, direct the Commissioner, appointed by the Court, not to give in inspection of the counterfoils of unused ballot papers to respondent No. 1. Excepting the aforesaid modification, rest of the order by the lower courts are confirmed.
8. In Writ Petition No. 4077 of 1991, Dr. Naik, appearing on behalf of the petitioners, has also challenged the vires of section 91 of the Maharashtra Co-operative Societies Act, 1960. Though, I am not dealing with this aspects, I am granting liberty to both the petitioners to raise this point, if they so desire, by filling independent writ at an appropriate time.
9. Both the writ petitions are rejected subject to the abovementioned observations.
10. Both the petitioners pray for time to approach the higher Court and challenge this order. Petitioners are granted eight weeks time to challenge this decision in an appropriate Court.
11. Stay granted to the petitioners at the interim stage on September 3, 1991, to continue for a further period of eight weeks. In the event, petitioners move the appropriate Court challenging this order, the petitioners to give 48 hours' notice to respondent No. 1 in this respect.
12. Certified copy of the order to be furnished forthwith.