BIREN VAISHNAV, J. -
(1.) By this petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ of mandamus or any other writ, order or direction for quashing and setting aside the order dated 23.12.2020 passed by the Returning Officer, Jamnagar District Cooperative Bank Ltd. By the aforesaid order, the objections raised by the petitioner requesting the Returning Officer to hold and declare that the respondent No.5 is not eligible and qualified to contest the election was turned down.
(2.) The facts in brief are as under:
* The Jamnagar District Cooperative Bank Limited ('the Bank' for short) is a cooperative society and "a specified society" u/s. 74(C) of the Gujarat Cooperative Societies Act. The election to the Bank which is a specified society u/s. 74(C) of the Act was due. Accordingly, a preliminary voters list was published on 23.11.2020 under Rules 4 and 6 of the Gujarat Specified Cooperative Societies (Election to Committees), Rules, 1982 (hereinafter referred to as the 'Rules of 1982'). An election programme was published on 4.12.2020, nomination papers had to be filed between 14.12.2020 and 19.12.2020 and the elections for the Bank were scheduled to be held on 13.1.2021. The petitioner had filled in form to contest the election from the Dhrol Constituency. Even the respondent No.5 filled in such form from the same constituency. The respondent No.5 figured in the list of candidates from the Dhrol Constituency.
* On 20.12.2020, the petitioner filed objections to the candidature and the nomination of the respondent No.5 for contesting the election. The objection inter alia was that the respondent No.5 had been convicted by the Principal Civil Judge and JMFC, Dhrol in Criminal Case No.128/2008 for offences punishable u/s.143, 147, 353, 452 of the IPC read with sec.3(A) of the Prevention of Damage to the Public Property Act, 1984. By a judgment and order dated 13.10.2020, the respondent No.5 was sentenced to undergo imprisonment for two years and six months and was imposed a penalty. According to the petitioner, therefore, in terms of bye-law 30(ix)(c) of the Bye-laws of the respondent - Jamnagar District Cooperative Bank Limited, the respondent No.5 was not eligible and qualified to contest the election. Written submissions were also filed on 23.12.2020 contending that in view of the conviction of the respondent No.5 by the judicial magistrate on 13.10.2020 and even when an appeal was filed against the conviction, the conviction was not stayed by the appellate court i.e. 3rd Addl. Sessions Judge and what was only suspended was the sentence the respondent no.5 was not qualified to contest. Based on the objection and the written submissions so filed, the case of the petitioner was that the respondent No.5 had incurred disqualification to contest the election in terms of the bye-law and, therefore, his nomination should be rejected. * By the impugned order dated 23.12.2020, the Returning Officer rejected the objections of the petitioner, paving the way for the respondent No.5 to contest election to the Managing Committee of the Bank. Hence, the petition.
(3.) Mr.P.K. Jani, learned senior counsel has appeared with Mr.Viral K. Shah, learned advocate for the petitioner through Video Conferencing. He made the following submissions: * Mr.Jani invited the attention of the Court to the bye laws of the Jamnagar District Cooperative Bank Limited, reproduced in the petition at Page 12 and submitted that as per the bye laws, no member shall be eligible for being elected for the board of directors if he has been convicted of a criminal offence or offence involving moral turpitude. Inviting the attention to the operative portion of the order of the Judicial Magistrate, dated 13.10.2020, Mr.Jani would submit that the respondent was convicted of the offences under the relevant provisions of the IPC read with the Prevention of Damage to the Public Property Act. The conviction and sentence was for a period of six months for various offences which in all was for a period of two years and six months.
* Mr.Jani would then invite the attention of the Court to the order in the appeal preferred against the conviction by the respondent No.5 and submit that by the appellate order dated 6.11.2020, only the sentence was suspended and the order of conviction was not stayed. It was on this count that the petitioner had extensively lodged objections and filed written submissions which the Returning Officer dealt with in rejecting the objections without assigning any reasons.
* He would further invite the attention of the Court to the provisions of Rule 23(2)(a) of the Rules of 1982 which provided for scrutiny of nomination papers. He would submit that in accordance with Rule 23(2)(a), it was incumbent upon the Returning Officer to reject the nomination since the respondent No.5 was disqualified for being chosen to fill the seat by or under the Act, Rules or Bye Laws. The bye law 30(ix)(c) specifically providing for a disqualification on conviction would entail rejection of a nomination under rule 23(2)(a). Mr. Jani would submit that the Returning Officer did not deal with any of his submissions and without assigning any reasons, rejected the objections of the petitioner. * Mr.Jani invited the attention to the amended portion of the petition, particularly para 2 where he would submit that the State of Gujarat had filed Special Criminal Application No.5779/2020 seeking appropriate orders from the Court to withdraw the prosecution launched against the respondent No.5, however the petition was withdrawn on 13.10.2020. He would submit that the government was out to nip in the bud the prosecution initiated against the respondent No.5 which was faulted and the State Government was compelled to withdraw the petition.
* Mr. Jani would further submit that even the respondent No.5 was aware of the fact that the conviction was not stayed. It was in these circumstances that he moved an application Exh.25 before the District and Sessions Judge, in his appeal, on 30.12.2020 requesting that since the order of the suspension of sentence has been stayed, and since he is an MLA for six terms, the conviction also may be stayed. This abundantly makes clear that the respondent No.5 was conscious that the order of 6.11.2020 was not a stay of conviction but only a suspension of sentence. On 1.1.2021, the respondent No.5 withdrew the application as not pressed.
* Mr. Jani would submit that on the conclusion of a trial, three eventualities occur: one is conviction, then the order of sentence and compensation. What is evident from the facts on hand is that it is only the sentence that is suspended and the conviction is not stayed. He would emphasise by reading the operative portion of the order of the appellate court in support of this submission. * Mr. Jani would invite the attention of the Court to the provisions of sec.389 of the Cr.P.C and submit that pending any appeal by a convicted person, the appellate Court for reasons to be recorded by it in writing, order that the execution of the sentence or order be suspended. He would submit that the stay of conviction cannot be taken as a course naturally open on filing of an appeal. In support of his submission, Mr.Jani relied on the decision in the case of Navjot Singh Sidhu v. State of Punjab reported in 2007(2) SCC 574, he would extensively refer to paras 20, 21 and 22 of the judgment to contend that u/S.389 when an appeal is filed it is only execution of sentence which can be suspended. An order of conviction cannot be suspended or stayed as the same is not capable of being stayed or suspended. He would submit that in order to maintain purity in political arena, bye law 30(ix)(c) of the Bank envisages that any person who is convicted should be disqualified from standing for election. Mr.Jani also relied on the decision in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali reported in 2007(1) SCC 673 to contend that where the execution of the sentence is stayed, the conviction continues to operate and as is evident in the present case, since there is no stay of conviction, the order operates and the respondent No.5 ought to have been declared as uncontested. * Mr. Jani would therefore submit that even in the understanding of the respondent No.5, the fact that he moved an application Exh.25 was vocal enough to suggest that the conviction is not stayed.
* Mr. Jani would rely on a decision in the case of Zoroastrian Cooperative Housing Society Ltd. v. District Registrar, Cooperative Societies (Urban) reported in 2005(5) SCC 632 to contend that a member cannot contend that bye laws do not bind him. As held in the decision in the case of Zoroastrian (Supra), it cannot be said by a Member that the Bye Laws are not operative and binding. Reliance is also placed on the decision cited at the bar reported in 2013(3) GLR 2682.
* Pressing into service Sec.74 of the Act, Mr. Jani would submit that the management of every society shall vest in a committee to be constituted in accordance with the Act, Rules and the Bye laws. Therefore, in order to be eligible to be a member of a committee, especially the managing committee, one needs to satisfy the qualification as prescribed under the bye laws, which the respondent No.5 did not.
* Attention was also drawn of the Court to the provisions of Sec. 145(F) of the Act to submit that in accordance with the provisions, a person shall be disqualified from being elected as and for being a member of a committee of any specified society if he has been convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years and unless a period of five years has lapsed since his release. He would submit that apart from the fact that the respondent No.5 has to undergo six months' imprisonment for five offences which tantamounts to an imprisonment for two years and six months, the bye laws of the Jamnagar District Cooperative Bank are more stringent with a view to instill the confidence and maintain purity in the field of cooperative societies to provide a higher level of disqualification.
* Mr. Jani would also submit that if Sec.145(F)(1A)(ii) is read, it is open for the society to have provisions in addition to and not in derogation of any other provisions for disqualification contained in the Act and, therefore the bye law in question is binding to the respondent No.5 and the election officer was clearly in error in rejecting the objections of the petitioner.
* Even by inviting attention to Rule 82 of the Rules of 1982, Mr. Jani would submit that a person who was disqualified to be chosen to fill the seat could not have been nominated to contest the election. ;