Sukhdev Prasad Kanojiya vs State of M.P. and Others

Dipak Misra, J.

The principal issue that arises for consideration in this writ petition is whether the respondent No. 4, Shri Durg Singh, was entitled to contest in the election for the post of Member of Board of Directors of Co-operative Society, Majholi.

The facts as have been adumbrated in the writ petition are that the respondent No. 4 filed his nomination papers for the purpose of contesting as Member of Board of Directors of the aforesaid Society though he is not eligible to contest in such election having been convicted by Special Judge in Special Case No. 55/97 for commission of offence punishable u/s 325 read with Section 14 of the Indian Penal Code and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 1,000/-.

It is not disputed at the Bar that the petitioner is a member of the said Society and he was having aspiration of becoming a member of the Committee which is called Board of Directors, as has been putforth by Mr. Gangele, learned counsel who is appearing on behalf of respondent No. 4. It is putforth by Mr. Gangele that though the factum of conviction is not disputed, the respondent No. 4 has been declared elected and, therefore, the petitioner can take recourse to alternative remedy by raising a dispute before the competent authority u/s 64 of the M.P, Co-operative Societies Act, 1960 (for brevity ''the Act'').

Ordinarily the election disputes are to be adjudicated by the forum prescribed under the statute, but this Court on 14-12-2001 while directing issuance of notice had observed that election may taken place but the result thereof shall not be published. However, it is submitted at the Bar that prior to passing of such order the results had already been published. As the present case involves interpretation of the provisions of the statute and Mr. Gangele has made an innovative submission I think that this Court should deal with the said issue and should not leave it to the Election Tribunal. The question that falls for consideration, as has been indicated hereinabove, is whether the respondent No. 4 could have participated in the election.

Mr. Devesh Khatri, learned counsel for the petitioner, has drawn the attention of this Court to Sections 19-A and 19-AA of the Act. Section 19-A of the Act deals with Disqualification of Member. The said provision reads as under :--

"19-A. Disqualification of Member.-- (1) No person shall be eligible for admission as member and any member shall cease to be a member of a society, if-

(a) he is an applicant to be adjudicated or is an undischarged insolvent;

(b) he has been sentenced for an offence involving moral turpitude and a period of five years has not elapsed from the date of expiry of sentence;

(bb) he has been sentenced for an offence under the provisions of the Protection of Civil Rights Act, 1955 (No. 22 of 1955) and a period of six years has not elapsed from the date of expiry of sentence.

(c) he or any member of his family having common interest with him, carries on business similar to one carried on by the society:

Provided that the provisions of Clause (b) shall not apply to a person seeking admission as member of a society exclusively formed or to be formed for the reclamation of Vimukta Jatis.

(d) If he is disqualified u/s 48-A of the Act;

(e) If he is a person who has been dismissed from the service of any co-operative institution or Government Service.

(f) In case of a Primary Agriculture Credit Co-operative Society, he is not a Bhumiswami, occupancy tenant or a government lease holding agricultural land :

Provided that a member of such society on the 26th day of April, 1990 who is not a Bhumiswami, occupancy tenant or a Government lessee shall as from such date be a nominal member of such society.

Explanation : For the purposes of this sub-section-

(i) "Vimukta Jatis" means such tribes as the State Government may, from time to time, by general or special order, declare as Vimukta Jatis for the purpose of this sub-section;

(ii) the business carried on by a trader including that of money lending shall be deemed to be similar to the business carried on by a marketing society."

Section 19-AA stipulates the Disqualification of membership of committee and for representation. As far as member is concerned a person has to be sentenced for an offence involving moral turpitude and a period of five years has to elapse from the date of expiry of sentence. It is not disputed at the Bar that the respondent No. 4 has not been convicted of an offence involving moral turpitude. I need not delve into the same as the respondent No. 4 is the member of the society and the membership is not called in question. What is being called in question is the aspiration of becoming a member of the Committee. Section 19-AA, as has been stated before, makes a postulate in regard to disqualification of membership of committee. It reads as under :--

"19-AA. Disqualification for membership of committee and for representation.-- No person shall be eligible for election as a member of the Committee of a society and shall cease to hold his office as such if he suffers from such disqualification as may be prescribed. No society shall elect any member as its representative to the committee of any other society or to represent the society in other society, if he suffers from such disqualification, as may be prescribed :

Provided that, if a member suffers from any of the disqualification prescribed under this section-

(i) it shall be lawful for the committee of the society to disqualify such member where he is elected as a Director being a member of that society, after giving him a reasonable opportunity of being heard, within two months from the date of coming to the notice of the society from holding the post.

(ii) if, the member incurs a disqualification, in the higher level society, for his actions as a representative, such higher level society shall take action to disqualify him for holding the post in the higher level society.

If the society fails to take action, the Registrar shall disqualify such member from holding such post by an order in writing after giving him reasonable opportunity of being heard."

On a perusal of the aforesaid provision it is quite clear that no person should be eligible for election as a member of the committee of a Society if he suffers from such disqualification as may be prescribed. A set of Rules called Madhya Pradesh Co-operative Societies Rules, 1962 (hereinafter referred to as ''the Rules'') has come into existence. Rule 44 of the said Rules which has been introduced by way of an amendment on 12-7-1995 reads as under :--

"44. Disqualification for membership of Committee.-- (1) No person shall be eligible for election, co-option or nomination as a member of the committee of a society and shall cease to hold his office as such, if he-

(a) is an applicant to be adjudicated or is an undischarged insolvent; or

(b) is sentenced for an offence not involving moral turpitude and a period of five years has not elapsed from the date of expiry of the sentence; or

(c) is or becomes of unsound mind; or

(d) holds or accepts any office of profit in the society; or

(e) carries on business of the kind carried on by the society; or

(f) has been disqualified u/s 49, 50 or 53 for the period mentioned in the order; or

(g) has, at the time of nomination of his/her candidature, or subsequent to his/her election, his/her wife/husband/father/ mother/brother/sister/son/daughter as a paid employee of the society; or

(h) is or gets in default to the society or to any other society for a period exceeding twelve months in respect of any loan or loans taken by him; or

(i) has been a member of a society for less than forty five days immediately preceding the date of election; or

(j) has been removed from the service of Central Government or a State Government or any Public Undertaking institutions or any local self institution or any co-operative society."

On a perusal of Rule 44 (b) it is perceptible that a person shall not be eligible for election and cannot be a member of committee if he is sentenced of an offence not involving moral turpitude with a rider that 5 years have not elapsed from the date of expiry of the sentenced.

It is submitted by Mr. Devesh Khatri, learned counsel for the petitioner, that the respondent No. 4 having been convicted of an offence u/s 325 of the Indian Penal Code squarely comes within the ambit and sweep of Rule 44 (b) of the Rules and, therefore, he is not eligible to contest the election.

Mr. Ajay Raizada, learned Government Advocate, has submitted that no objection was raised at the time of acceptance of nomination paper and, therefore, the matter has to be adjudicated by the Election Tribunal.

Per contra, Mr. S.K. Gangele, learned counsel for respondent No. 4, submitted that there is anomaly and ambiguity in Sections 19-A and 19-AA and Rule 44, and therefore, this Court must make an endeavour to arrive at harmonious consideration. The submission of learned counsel for respondent No. 4 is that the offence should have some connection with moral turpitude and the word "not" which has been used in Clause (b) of Rule 44 has to be omitted, as the existence of the said word in the said clause gives rise to absurd interpretation. Learned counsel has contended that Section 19-A of the Act clearly stipulates that conviction in respect of offence involving moral turpitude and, therefore, there cannot be escape from the same in the Rules. The aforesaid submission of Mr. Gangele at a first flush looks quite attractive but on a deeper scrutiny loses its significance inasmuch as Section 19-A deals with membership whereas Section 19-AA deals with disqualification of membership of committee. There is a sea of difference between an ordinary member and membership of committee or the Board of Directors. Section 19-AA relates to the different compartment and much weighment has been given and that is why the words "as may be prescribed" are used in the Section. Keeping in view the tenor of language employed in Rule 44 it is crystal clear that Rule 44 is unequivocal in its terms and stipulates that if a person is sentenced for an offence not involving moral turpitude he is not eligible for election. Submission of Mr. Gangele is that word "not" should not be read and should be omitted. In my considered opinion the inclusion of word "not" is with an avowed purpose and does not lead to any kind of absurdity. It is in harmony with the scheme of the Act. I may hasten to add, rarely the Court would think of not reading the words engrafted in the statute or the Rules. In the present case such an occasion does not arise.

In view of the aforesaid discussion the respondent No. 4 having not been eligible being convicted of an offence punishable u/s 325 of the Indian Penal Code, could not have contested in the election. Accordingly, the election of the respondent No. 4 is set aside and the authorities are directed to conduct a fresh election as per law.

Resultantly, the writ petition is allowed without any order as to costs.