Ranvijay Kr. Singh vs The State of Bihar and Others

Jyoti Saran, J.—1. The petitioner by this writ petition filed under Article 226 of the Constitution of India prays for issuance of a writ in the nature of certiorari for quashing the order dated 16.1.2013 passed by the Registrar, Cooperative Societies, Patna in Election Dispute Case No. 251 of 2012 (Ran Vijay Kumar Singh v. Aurangabad District Cooperative Bank Ltd. and others) circulated vide memo No. 08/RL dated 17.1.2013 impugned at Annexure-13 to the writ petition whereby the election case has been dismissed.

The matter in contest relates to the election to constitute the Managing Committee of the Aurangabad District Central Cooperative Bank Ltd., Aurangabad which is a society registered under the Bihar Cooperative Societies Act, 1935 (hereinafter referred to as ''the Act'') and the rules framed thereunder. The Managing Committee which is also referred to as the Board of Directors of the Bank is constituted under the provisions of ''the Act'', the rules and the bye-laws framed thereunder and has a term of 5 years. Facts as pleaded in the writ petition reflects that the electoral college of the Bank consists of 3 groups with Group-I consisting of the Primary Agriculture Credit Cooperative Societies (hereinafter referred to as ''the PACS"), Vyapar Mandals and the Cane Development and Cane Marketing Unions which are affiliated to the Bank. Group No. II consists of Primary Weaver Cooperative Societies and the Fishermen Cooperative Societies which are affiliated to the Bank and Group-III consists of the other types of Cooperative Societies affiliated to the Bank which do not fall within Groups-I and II. The petitioner is the Chairman of the Sargawan ''PACS'' and which is affiliated to the Bank under Group-I. It is under the directions of the Chief Election Officer, Bihar State Election Authority that a draft voter list was published, objections invited and final voter list published after disposal of the objections so filed. The name of the petitioner as a delegate of Sargawan PACS finds mention at Serial No. 27 of the final voter list and is shown to be in arrears. The relevant extract of the voter list published on 15.10.2012 is placed at Annexure-2 to the writ petition. Instructions were issued by the State Election Authority on 27.9.2012 placed at Annexure-1 requiring the Managing Director of the Bank to mention the disqualification of any member of the society or its delegate in Columns 8 and 9 of the form and in case no such disqualifications are mentioned in the format prescribed then the nomination paper is not to be rejected. The position is reiterated in the instructions issued on 18.3.2010, a copy of which is placed at Annexure-3. The instructions present at paragraph 5 of the said letter addressed to the District Election Officers gives an opportunity to the defaulters to clear their dues and produce a no dues certificate from the bank but this exercise can only be carried out until the start of the nomination process.

It is the case of the petitioner that although the list dated 15.10.2012 present at Annexure-2 at Serial No. 27 does show the petitioner society in default but there is no quantification of the dues. It is further the case of the petitioner that on 12.11.2012 the Managing Director of the Bank issued a letter to the Sub Divisional Officer-cum- Election Officer, Central Cooperative Bank Ltd., Aurangabad giving the list of defaulters which also includes the name of the petitioner and shows an outstanding of Rs. 27.81 lacs against Kisan credit loan. According to the petitioner this letter was issued on 12.11.2012 and since the banks were closed on 13.11.2012 on account of Diwali hence he deposited the entire outstanding before the initiation of the nomination process on 14.11.2012 and also produced the no dues certificate issued by the Branch Manager along with the nomination form on 14.11.2012, a copy of which is a part of Annexure-6 series at pages 64 and 65. It is further the case of the petitioner that the date fixed for scrutiny of the nomination was 16.11.2012 but no order was passed. It is stated that it is much after the scrutiny date that on 21.11.2012 the nomination of the petitioner was rejected on grounds of default, a copy of which is placed at Annexure-8. The petitioner questioned the rejection of his nomination by raising an election dispute under Section 48 of ''the Act'' giving rise to Election Dispute Case No. 251 of 2012 and which has been dismissed by the order impugned dated 16.1.2013 circulated vide Memo No. 08/RL dated 17.1.2013 and the petitioner being aggrieved is before this Court.

Mr. Rajendra Prasad Singh, learned Senior Counsel along with Mr. Ishwari Singh has appeared for the petitioner, the State is represented by the State Counsel, the Election authority is represented by Mr. Mukesh Kumar, the Bank is represented by Mr. Surendra Prasad Singh, Mr. Shashi Anugrah Narain, learned Senior counsel along with Mr. Ajay Singh have appeared for the respondent No. 5, Mr. S.B.K. Mangalam, learned counsel has appeared for the respondent No. 6 and Mr. Arbind Singh along with Mr. Rajiv Singh have appeared for the respondent No. 7.

Mr. Rajendra Prasad Singh, learned Senior Counsel representing the petitioner while reiterating the sequence of events as discussed, has straight way referred to the order of rejection of nomination present at Annexure-8 to submit that it is an exercise without jurisdiction because as per the election schedule present at Annexure-4, the scrutiny of nomination could only be done on 16.11.2012 and not thereafter. He thus submits that the rejection on 21.11.2012 by the Election Officer is without jurisdiction. He further submits that even the ground for rejection is unsustainable for the rejection is not founded on grounds that the petitioner is a defaulter rather it is on grounds that the no dues certificate has not been issued by the competent authority. Mr. Singh next referred to the letter of the Managing Director, Central Cooperative Bank, Aurangabad dated 12.11.2012 whereby he has informed the Sub Divisional Officer, Aurangabad- cum- Election Officer that the no dues certificate in respect of the cooperative society or its representative has been compiled by the Branch Manager in the light of the instructions issued by the State Election Authority for further necessary action. The name of the petitioner also figures in the list and which shows a Kisan Credit loan of 27.81 lacs but which figure does not tally with the individual details mentioned in the body of the certificate.

Mr. Singh while contesting the validity of the certificate inter alia on grounds that the society cannot be held accountable for the Kisan Cash Credit loan submits that there is no cash credit loan mentioned in the body of the certificate. According to Mr. Singh, the petitioner could not be disqualified for the loan against the society and especially where there is no default set up against the petitioner. The second ground on which Mr. Singh has chosen to question the status report reflected in the letter of the Managing Director present at Annexure-5 is that even though the name of the society appears at Serial No. 27 in the list of the societies in default vide Annexure-2 but its quantification was made only 12.11.2012 leaving no space for the petitioner to clear the default. It is argued by Mr. Singh that this letter was circulated on 12.11.2012 and the Banks were closed on 13.11.2012 on account of Diwali and thus the petitioner was precluded from taking any steps for clearing the default whatsoever. He submits that on the very next date i.e. 14.11.2012 which was also the date of filing of the nomination, the petitioner did clear the dues vide Annexure-6 series and a certification was issued by the Branch Manager which also forms part of Annexure-6 series at page 65. It was thus submitted by Mr. Singh that it is wholly on account of delayed action by the Managing Director of the District Central Cooperative Bank in circulating the status of defaulters on 12.11.2012 that the petitioner could not clear the default before 14.11.2012 which was the date of nomination. According to Mr. Singh the nomination was filed on 14.11.2012 at 2.30 P.M. which is manifest from the rejection order present at Annexure-8 and it is much prior thereto, that the petitioner has cleared the default which is in tune with Clause-5 of the circular of State Election Authority dated 18.3.2010 present at Annexure-3.

Questioning the rejection order on merits it is argued that the Election Officer has not chosen to reject the nomination of the petitioner on grounds that he continued to be a defaulter rather he has rejected the nomination on a technicality that the no dues certificate was issued by an authority not competent to do so as per the circular dated 18.3.2010 of the State Election Authority more particularly clause 5(iii)&(v) of thereof. It is the argument of Mr. Singh that apart from the fact that the petitioner was not a defaulter when he filed his nomination even the grounds for rejection is unsustainable for Clause 5(iii) of the Advisory cannot be mechanically applied and unless the Election Officer was satisfied that the petitioner continued to be a defaulter, he could not reject the nomination on a technicality. Mr. Singh has further questioned the rejection on grounds that the Election Officer has rejected the nomination on 21.11.2012 when as per the election schedule present at Annexure-4 it could only be done on 16.11.2012 which is the date fixed for scrutiny and thus his action is illegal and without jurisdiction. He submits that the Registrar, Cooperative Society has also mechanically dismissed the case inter alia on grounds that the Branch Manager was not competent to issue a no dues certificate and that the default had to be cleared before the start of nomination process. According to Mr. Singh the order impugned at Annexure-13 is perfunctory and no finding has been recorded by the Registrar on the issues raised by the petitioner. Mr. Singh has referred to the second supplementary affidavit filed on behalf of the petitioner and with reference to an order passed by the Registrar Cooperative Societies in Election Dispute Case No. 250 of 2012 he submits that in identical situation where the nomination of the election petitioner against the post of Director on identical grounds had been rejected by the Election Officer inter alia for the reason that the dues were cleared on the date of nomination, the opinion of the Registrar is otherwise. As per Mr. Singh the order passed in Election Dispute Case No. 250 of 2012 is by itself sufficient to hold that the order impugned in this writ petition is illegal. It is also the argument of Mr. Singh that although Annexure-8 manifests that scrutiny was carried out on 16.11.2012 at 2.30 P.M. but no order of disqualification was passed and which shows that the order of rejection passed by the Election Officer on 21.11.2012 is an afterthought and motivated on extraneous considerations.

Mr. Singh has questioned the action of the Election authorities as affirmed by the order impugned on following grounds:

"(a) The petitioner is not a defaulter legally,

(b) The default whatsoever was removed much prior to the filing of nomination; and

(c) The rejection order is on non est grounds and beyond the date of scrutiny."

Mr. Singh has referred to the judgment of this Court in C.W.J.C. No. 16142 of 20104 (Abha Devi v. State) to submit that until the petitioner has been held to be in default in a statutory proceedings, he should not be debarred from participation. He also refers to Rule 23(1) (b) and Rule 23(2)(a) as well as Section 44BE of ''the Act'' to submit that the case of the petitioner does not fall under either of the categories. Learned counsel has referred to a bench decision of this Court reported in , 2014(4)PLJR 487 (Pramila Sinha v. State) in support of his submission.

Mr. S.B.K. Mangalam, learned counsel representing the respondent No. 6 standing in support of the petitioner has submitted that the moment the petitioner has cleared his default even if on the date of nomination then in terms of the instructions present at para 5(v) of the advisory dated 18.3.2010 Annexure-3, he could not have been held a defaulter. According to Mr. Mangalam, the moment the advisory grants liberty to the defaulter to clear the dues on the date of nomination it would continue until the nomination is filed by the incumbent and until the closure of the Bank. He further submits that the outstanding on account of Kisan Credit Card cannot be attributed to a default by the petitioner nor a presentation of a no dues certificate is a condition precedent for filing of nomination.

While the State counsel has simply defended the order impugned inter alia on grounds that it is in tune with the statutory provisions as well as the guidelines issued by the State Election Authority and the Bank represented by Mr. Surendra Prasad Singh has simply canvassed that Branch Manager was not authorized to issue no objection certificate at page 65, the main contest has come from the returned candidate i.e., respondent No. 5. Mr. Shashi Anugrah Narain, learned Senior Counsel representing the respondent No. 5 has contested the arguments advanced by Mr. Singh and has referred to Annexure-1 which is the guidelines of the State Election Authority dated 27.9.2012 issued to all District Magistrates-cum-District Election Officers in connection with the election of the District level Central Cooperative Banks including the preparation of the voter list as well as the disposal of objections thereto. In reference to Clause 3(viii) and (ix) he submits that a duty has been cast upon the Managing Director of the Bank to prepare a list of defaulters and a no dues certificate in this regard could only be issued by an official of the Bank duly authorized in this behalf. With reference to Clause (x)(xi)(xii) of paragraph 3 he submits that these paragraphs discusses the procedure for disposal of objections to a voter list. It is submitted that the final over list was published on 15.10.2012 as per the guidelines vide Annexure-2 and the name of the petitioner and his society appears at Serial No. 27, the name of respondent No. 6 appears at Serial Nos. 12 and their respective societies have been shown to be in arrears. He submits that although this list was published on 15.10.2012 i.e. almost a month prior to the date of nomination but no steps was taken by the petitioner to clear the default or raise objections. Mr. Narain has next referred to the advisory dated 18.3.2010 of the State Election Authority to submit that guidelines have been issued in relation to issuance of no dues certificate and it is clearly mentioned in the opening paragraph that no person would be eligible to contest the election in case he or his society is in default of any loan advanced by the society or any other society. He submits that if the Election Officer is satisfied on information gathered that any applicant was a defaulter then he would be within his jurisdiction to reject the nomination. With reference to the instructions present at paragraph 5(iii) and (v) he submits that it is only the Managing Director of the Bank who has been authorized to issue no dues certificate and none other. It is the argument of Mr. Narain that though the option to clear the loan is present in the guidelines but that was available only until the initiation of the nomination process and not thereafter. Learned counsel with reference to the election schedule present at Annexure-4 submits that the nomination started from 11 A.M. on 14.11.2012 and continued till 3 P.M. Learned counsel next referred to the rejection order present at Annexure-8 to submit that the nomination form itself reflects that it was filed at 2.30 P.M. and thus did not satisfy the requirements present in paragraph 5(v) of the instructions present at Annexure-3 which required the default to be cleared before the initiation of the nomination process. With reference to Annexure-5 dated 12.11.2012 he submits that it is only an intimation given to the Election Officer that the Branch Manager have been directed to compile the no objection certificate and which letter also accompanies list of defaulters which includes the petitioner. Mr. Narain next referred to the letter of the petitioner present at page 64 of Annexure-6 series as well as the no dues certificate issued by the Branch Manager present at page 65 to submit that the time of deposit is conspicuously missing in the documents. According to Mr. Narain there is nothing in the documents which would show that the petitioner cleared the default before the initiation of the nomination process rather Annexure-8 does confirm that the nomination was filed only at 2.30 p.m.

Mr. Narain has referred to the third supplementary affidavit of the petitioner present at running page 230 to submit that although the petitioner claims to have cleared the dues at 10.40 A.M. vide paragraphs 6 and 8 of the affidavit but this statement is an afterthought and merely to wriggle out of the objection raised by the answering respondent that the dues were cleared after initiation of the nomination process. According to Mr. Narain, the guidelines clearly permitted the petitioner to clear the dues before the start of the nomination process and since the nomination process as per the election schedule had to start at 11 A.M. hence a deposit even at 11 A.M. would not be sufficient to clear the petitioner of the default. Mr. Narain has referred to the election petition present at Annexure-14 to submit that all along it is the case of the petitioner as manifest from paragraphs 8 to 15 thereof that he made the deposit at 11 A.M. and thus the statement made by the petitioner in the third supplementary affidavit regarding the deposit at 10.40 A.M. is false and an afterthought. Learned counsel with reference to the written arguments filed by the petitioner in the election case submits that even at paragraph 15 of the written arguments does the petitioner mention that he made the deposit at 11 A.M. With reference to the decision of the Supreme Court reported in , (2000)6 SCC 622 (Chimajirao Kanhojirao Shirke v. The Oriental Fire Insurance Company), he submits that a plea taken in a written statement by the petitioner cannot be ignored or controverted on legal proposition.

Mr. Narain has next referred to the counter affidavit filed on behalf of the respondent No. 5 and with reference to paragraphs 10 and 12, he submits that the petitioner did not question the voter list before any authority though he was entitled to raise objections against the same. With reference to the statement at paragraph 17 he submits that the default was much mentioned in the voter list which was published on 15.10.2012 vide Annexure-2 and yet no steps was taken by the petitioner to clear the default. It is next argued that the ''PACS'' of which the petitioner happens to be the Chairman was admittedly in default and hence the petitioner could not contest the election as a delegate in view of the stipulations present at Rule 23(2) of the rules. It is next argued that since the Branch Manager was not authorized to issue a no dues certificate hence its production had no meaning.

Responding to the argument of Mr. Singh that the petitioner was given no time to clear the default it is argued by Mr. Narain that the status of the society being in default was much open by the publication of the revised voter list on 15.10.2012 vide Annexure-2 and hence the excuse is unsustainable and Annexure-5 so relied upon by the petitioner cannot come to his rescue.

It is argued by Mr. Narain that neither Section 44BE nor Rule 23(1) would be relevant for the issue in contest rather it is Rule 23(2) which is relevant for the present adjudication and which is self eloquent and free from ambiguity. Learned counsel has relied upon decision of the Supreme Court reported in , (2007) 6 SCC 143 (Promoters and Builders Association v. Pune Municipal Corporation) paragraph 11 in support of his submission

Responding to the argument of Mr. Singh that the Election Officer had no jurisdiction to reject the nomination after the date of scrutiny which was fixed on 16.11.2012, it is argued that the jurisdiction was much vested in the Election Officer to do the same on 21.11.2012 and for the purpose Mr. Narain has referred to a circular dated 3.11.2012 of the State Election Authority placed at Annexure-B to the supplementary counter affidavit of the respondent No. 5 to submit that it was issued in context with the elections in question. With reference to paragraph 2 at page 161 he submits that the disqualifications stands discussed with specific reference to Section 44BE of ''the Act'' and paragraph 3 on the same page also holds that a defaulter under Rule 23(1) and 23(2) cannot contest the election to the Board of Directors as a delegate of the society. Learned counsel again with reference to the guidelines present at page 163 submits that the guidelines on submission of nomination form stands discussed in this paragraph and paragraph 6.2 mentions that the nomination would start from 11 A.M. Learned counsel has also referred to the guidelines present at paragraphs 6.13 and 6.15 to submit that the obligations stands discussed. Mr. Narain has next referred to paragraph 8 at page 175 to submit that each of the delegate was required to submit the accounts details and where it was found wanting that the date of scrutiny was extended to 21.11.2012. He thus submits that there was thus no illegality in the rejection order being passed on 21.11.2012. Learned counsel has referred to the statement made in paragraphs 9 and 10 of the counter affidavit filed on behalf of the respondent No. 3 to submit that the failure of the petitioner to submit accounts details is specifically mentioned and has not been contested by the petitioner. According to Mr. Narain whether the petitioner is found in default of loan or of default in submission of the accounts details, in either situations a rejection would follow. With reference to the provisions of Bihar State Election Authority Act, 2008 (hereinafter referred to as ''the Act of 2008'') he submits that Sections 8 and 9 cast a duty on submission of accounts, which is a mandatory obligation.

Questioning the stand of the respondent Nos. 6 and 7 as taken before this Court, he submits that these respondents after contesting election against the petitioner, cannot return to support him. Learned counsel has also referred to chapter 21C of the Patna High Court Rules to submit that a respondent cannot stand up to support the cause of the petitioner. Mr. Narain in support of his submission referred to the follow judgments:

"(a) , AIR 1995 SC 1088 (Madan Lal v. State) paragraph 9

(b) , AIR 1978 SC 28 (I.L. Honnegouda v. State of Karnataka)

(c) 1976 BBCJ 486 (M/s. Amit Biotic Stores v. K.D. Prasad)

(d) , 2005(3) PLJR 582 (Balram Singh Yadav v. State)"

Summarizing his arguments it was concluded by Mr. Narain that the petitioner clearly being a defaulter of the dues of the society on the date of filing of the nomination, it was rightly rejected and the rejection has been rightly affirmed in the impugned order.

I have heard learned counsel for the parties and I have perused the records.

Although exhaustive arguments have been advanced by the contesting parties but the issue which falls for consideration lies in a very narrow compass. In fact in my opinion, the twin issues which fall for consideration in the contest are:

"(a) Whether the society was in default of such nature so as to render the petitioner ineligible to contest the election as its delegate under Rule 23(2) of the Bihar Cooperative Societies Rules, 1959 framed under ''the Act'' and if the answer to this query is in positive, then

(b) Whether the ineligibility stood removed by deposit of the amount found outstanding against the society by the petitioner on the date of filing of nomination."

The three statutory provisions which would provide an answer to the issues so framed are Section 44BE (3)(b), Rule 23(1)(b) and Rule 23(2)(a) which are being reproduced hereinbelow for ready reference.

"44BE (3) No person shall be eligible for election to the managing committee of a cooperative society under Short Term Co-operative Credit Structure, if-

(a).................................................................

(b) such person is in default to the society or any other registered society in respect of any loan taken by him or has any dues of the society on the date of filing of nomination, or...................................................

23(1) No person shall be eligible for election to the Managing Committee, if-

(a)..................................................................

(b) he is in default to the society in respect of any loan taken by him for such period as is prescribed in the bye-laws or in any case for a period exceeding three months or is in default to the society in respect of any other dues or is in default to any other registered society on the date of filing of nomination, or...............................................

23(2) No delegate/representative of an affiliated society shall be eligible for election to the Managing Committee, if-

(a) the affiliated society is in default to the society in respect of any loan taken by it for such period as is prescribed in the bye-laws or in any case for a period exceeding three months or is in default to the society in respect of any other registered society on the date of filing of nomination, or........................................"

Although it has been argued by Mr. Narain that it is Rule 23(2)(a) which would be relevant for the contest but my opinion is otherwise. In so far as an election to a cooperative society is concerned, an applicant is required to keep clear of the disqualification mentioned in Section 44BE as well as the stipulations present in Rule 23(1) but when the said applicant after being successful attempts to contest the election to the post of Chairman or a Director of a District Central Cooperative Bank and forms a part of the electoral college by virtue of being a delegate or representative of the society which is affiliated to the Bank then he not only has to satisfy the conditions present in Section 44BE and Rule 23(1) but he also has to satisfy the stipulation present in Rule 23(2) of the rules. Since the present contest revolves around a disqualification on account of over dues existing against the society of which the petitioner happens to be the Chairman hence I have consciously reproduced only the relevant provisions governing such disqualification as present in the statute book.

The facts regarding over dues existing against the society is admitted and is not in dispute. In fact the revised voter list present at Annexure-2 which was published on 15.10.2012 clearly mentions that the petitioner''s society was in arrears and thus its delegate/representative stood disqualified to contest the election to constitute the Managing Committee of the Bank. The revised voter list was published on 15.10.2012 but no steps was taken by the petitioner as its Chairman, to remove the disqualification. The details of the over dues is present in the enclosure to Annexure-5 and confirms that the society was in arrears. The petitioner being the Chairman of the society cannot feign ignorance about this fact situation. Mr. Rajendra Prasad Singh learned Senior Counsel for the petitioner has tried to question the arrears on its legality inter alia on grounds that it related to Kisan Cash Credit loan which was repayable by the members and not the petitioner but as I have mentioned hereinabove even if a Kisan Cash Credit loan is outstanding against the members of the society that would be a disqualification for the Chairman of the society under Rule 23(2)(a) and he cannot wriggle out of the situation by shifting the burden on the members of the society. As a Chairman of the society it is the duty of the petitioner to take steps for repayment of the loan under the Kisan Cash Credit loan and the petitioner cannot avoid this responsibility by relying upon the judgment of this Court rendered in the case of Abha Devi (supra) or Pramila Sinha (supra).

As I have said where an applicant contests an election of the Managing Committee of the Primary Agriculture Credit Cooperative Society, he is governed by Section 44 BE read with Rule 23(1) and thus is accountable for his own default in respect of any loan or any other dues outstanding against him and in such case a loan granted to a society may not be an issue of disqualification but such is not the case where the applicant concerned represents the society as a delegate for contesting an election to the District Level Central Cooperative Bank as in the present case. Each delegate/representative of a cooperative society when contesting an election to the post of Chairman or Director of the District Level Central Cooperative Bank has to cross both the hurdles as present in Rule 23(1) as well as Rule 23(2) read along with Section 44BE. In fact the petitioner has well understood his responsibility and it is for this reason that he took steps to clear the default on 14.11.2012 vide Annexure-6 series.

My discussion above answers the issue posed at item ''(a)'' above in the affirmative. In other words, the society of which the petitioner was the Chairman was in default of such nature to render the petitioner as its delegate, ineligible to contest the election under Rule 23(2)(a) of the rules.

The liability thus being fastened on the petitioner together with the obligation cast, it is to be seen whether the obligation so cast stands discharged by the petitioner by deposit of the outstanding amount on 14.11.2012. The statutory provisions do confirm the position that whether the petitioner as the Chairman of the society or the affiliated society itself, if found to be in default in respect of any loan on the date of nomination, then the delegate/representative concerned of the said society becomes ineligible to contest the election. The three statutory provisions which are relevant for the adjudication on the contest also leave no room for confusion that the default whatsoever, had to be removed at least on the date of nomination. The crux of the matter is whether the default subsisted at the time of filing of nomination so as to invite a rejection.

The opportunity to clear the default is granted in the guidelines of the State Election Authority itself dated 18.3.2010 present at Annexure-3, more particularly paragraph 5(v) thereof. The pleadings on record contains specific statement of the petitioner that he deposited the outstanding at 11 A.M. in the Bank. Though the petitioner has tried to modify his statement by filing a supplementary affidavit on 2.3.2016 but it is too late in the day for the petitioner to alter his stand. The statement made by the petitioner in the election petition as well as in the written arguments filed before the Prescribed Authority clearly contains his admission regarding deposit of the outstanding amount of Rs. 27.81 lacs with the Bank at 11 A.M. and which position is reiterated at para 20 of the writ petition also. This Court thus would not permit the petitioner to deviate from his stand.

The issue which remains is that in the admitted circumstances where the entire outstanding existing against the society of the petitioner stood cleared before he filed his nomination, whether his nomination could yet be rejected. The interesting part of contest is that the rejection of the nomination filed by the petitioner is not on the ground that he is a defaulter rather it is on grounds that the no dues certificate was issued by an authority not competent to do so.

Although the contesting parties have argued heavily on the issue whether the disqualification stood removed by the deposit of the overdues but in my opinion, these arguments are superfluous and do not meet the reasons for rejection of the nomination as found in the rejection order present at Annexure-8. The order impugned does not disqualify the petitioner on grounds of being a defaulter rather it is on account of the competence of the Branch Manager to issue a no objection certificate that the nomination has been rejected. In my opinion, the rejection order is illegal on either counts for in my opinion neither the petitioner remained a defaulter when he filed his nomination nor the no dues certificate issued by the Branch Manager was capable of rejection.

Whether it is Section 44BE or Rule 23(1)(a) or Rule 23(2)(b), the mandate is very clear and it is only where the applicant concerned is found to be in default at the time of filing of nomination that he can be held disqualified. Once the default is removed, even if it is on the date of filing of nomination, then there exists no reason for a rejection of nomination. In fact even the guidelines dated 18.3.2010(Annexure-5) in its paragraph 5(v) clearly stipulates that an opportunity should be given to the applicant to clear the default and the petitioner has cleared the same. Even though objection is being raised as to the time of deposit but that would be a hyper technicality for disqualifying an applicant.

As I have said earlier if the loan in question was subsisting at the time of filing of the nomination by the petitioner then perhaps the rejection order could be upheld but that is not the case and even the rejection order does not hold the petitioner a defaulter. Now where the rejection order itself does not rest on the ground that the default subsisted rather restricts itself on the competence of the authority to issue the no dues certificate, the arguments advanced by Mr. Narain either on the time of the deposit or on the filing of accounts, becomes irrelevant because that is not the foundation for the impugned order. Law is well settled and an order impugned has to be tested on the reasons assigned therein and not what logically flows therefrom. Reference is made to the celebrated judgment of the Supreme Court passed in the case of Mohindra Singh Gill since reported in , AIR 1978 SC 851.

I would thus restrict myself to the reasons assigned in the impugned order. The reason for rejection of the nomination is inter alia on grounds that the no dues certificate filed by the petitioner was not worthy of reliance having been issued by the Branch Manager. I am of the opinion that an unnecessary ghost has been created by the Election Officer and seconded by the Prescribed Authority and for the purpose, I would refer to Clause 5(iii) of the guidelines dated 18.3.2010 present at Annexure-3 which clearly mentions that in the case of District Central Cooperative Bank, State Cooperative Bank and other ''PACS'' and State Level Societies, the no dues certificate would be issued by the Managing Director of the Bank but the said stipulation also accompanies a rider which confers authorization to other authorities of the bank as well, where the operational area of the Bank is very large. Whereas the Returning Officer along with the Prescribed Authority have questioned the jurisdiction of the Branch Manager to issue a no dues certificate and which issues have also been advanced by Mr. Narain as well as Mr. Surendra Prasad representing the Bank but I am surprised as to how the authorities concerned as well as the learned counsel have given a go bye to the provisions present at Clause 5(iii) of the guidelines. In fact the Bank also does not raise any such issue in their counter affidavit. There is no statement in the counter affidavit about lack of authorization on the part of the Branch Manager in issuing a no dues certificate. Apart from the fact that no objection has been raised by the Bank as to the authority of the Branch Manager to issue a no dues certificate before this court, even otherwise the objection would hardly carry any weight once there is no dispute that the default stands cleared. It is not the case of the respondents that the overdues had not been deposited on the date of nomination or that the no dues certificate is a forged document. On the contrary the objection raised is on a hyper technicality as to whether the deposit was belated and whether the Branch Manager was competent enough to issue such certificate. Since the fact situation has not been contested by the Bank rather it is an admitted position that the dues had been deposited by the petitioner on 14.11.2012 and which position is supported by the no dues certificate issued by the Branch Manager present at page 65 of Annexure-6 series then under no circumstances, the nomination of the petitioner could have been rejected on a technicality that it was issued by an authority not competent to do so. Even the Registrar, Cooperative Society has got swayed on the technicality and although the judgment and order passed by him in identical situation arising from Election Dispute Case No. 250 of 2012 which was passed subsequently on 15.7.2014/29.9.2014, a copy of which is placed at Anneuxre-1 to the supplementary affidavit filed by the petitioner on 30.6.2015 does reflect that the error of judgment earlier committed by the Registrar stands corrected but in so far as the present petitioner is concerned the damage had been caused. In my opinion, his nomination has been rejected on erroneous grounds. The case of the petitioner squarely falls under Section 12(1)(c) of the Bihar State Election Authority Act for it is a confirmed case of improper rejection of nomination.

For the reasons and the discussions made hereinabove, the order dated 16.1.2013 passed by the Registrar Cooperative Societies in Election Case No. 251 of 2012 impugned at Annexure-13 together with the order passed by the Returning Officer dated 21.11.2012 whereby the nomination of the petitioner was rejected impugned at Annexure-8 to the writ petition cannot be upheld and are accordingly set aside and as a consequence the election of the respondent No. 5 as Chairman of the Aurangabad District Central Cooperative Bank, Aurangabad is accordingly set aside. The State Election Authority shall proceed accordingly to hold fresh election to the post of Chairman, District Central Cooperative Bank, Aurangabad in accordance with law.

The writ petition is allowed but without any order as to costs.