Hon'ble YADAV, J. - (1.) -
(2.) THIS Special Appeal is preferred against the judgment and order dated 7.2.1995 of the learned single Judge rendered in S.B.Civil Writ Petition No.5399 of 1994 - Pukh Raj Mehta V. State of Rajasthan and others whereby the writ petition was dismissed holding that the nomination paper of the petitioner has rightly been rejected as he was not maintaining a Deposit Account with the Bank of a continuous period of two years with a credit balance of not less than Rs.500/- in accordance with a Bye-Law No.31 alleged to have been framed in exercise of its delegated powers to frame Bye-laws. Facts necessary to be noticed for disposal of the appeal, briefly stated, are that the petitioner is a Member of Jodhpur Nagrik Sahakari Bank Limited, Jodhpur (hereinafter referred to as 'the Bank'). As the term of the Board of Directors has already expired by Notification dated 10.11.1994 (Annx.1) published in the Daily Newspaper "Rajasthan Patrika", the election of the Board of Directors was declared. Pursuant to the Election Programme, the petitioner filed his nomination paper for the office of Director. After scrutiny, on 18.11.94 the nomination paper of the petitioner was rejected on the ground that in his account Rs.500/-was not maintained for two years. The aforesaid writ petition was filed on 21.11.94 . While issuing notices on 25.11.94, this Court ordered that in the meantime, the petitioner would be permitted to contest and participate in the election, which was postponed to 29.11.94 instead of 26.11.94 subject to the result of the writ petition. It was also ordered on 25.11.94 that the result be not declared. In pursuance to the notice, respondent No.l filed reply on 3.12.94 along with Annx.R/1 declaration filed by the petitioner along with nomination from and Annx. R/2-petitioner's Bank Account. An application under Art.226(3) of the Constitution was also filed to vacate the stay order dated 25.11.94. Rejoinder to the reply was also filed on 5.12.94. It was ordered that S.B.Civil Writ Petition No.5399/94-Pukh Raj Mehta V. Stale of Rajasthan and others be heard along with S.B.Civil Writ Petition No.5394/94 Devi Chand V. State of Rajasthan and others and S.B.Civil Writ Petition No. 5381/94- Nirmal Nahar V. State of Rahasthan and others. According to the learned Single Judge, since it was found clear from the Bye-Law No.31 that one shall not be eligible to be elected as Director unless he is a share-holder member of the Bank for atleast two continuous years prior to the date of election and should have maintained a deposit account with the Bank for a continuous period of 2 years with the credit balance of not less than Rs.500/-. Learned Single Judge noticed the argument of Mr. A.R.Mehta, learned counsel appearing for the appellant to the effect that the petitioner was having Rs.500/- in Fixed Deposit in the Bank, hence, the petitioner was eligible to contest the election of the office of the Director. Learned Single Judge further noticed the arguments advanced in rebuttal by learned counsel , for Respondent No.2 Mr.M.R.Singhvi to the effect that fixed deposit of Rs.500/- does not fall within purview of credit balance of the share-holder account. The learned Single Judge refused to entertain and address himself to the aforesaid rival contentions raised at the Bar because this fact was not brought to the notice of the Election Officer(respondent No.3).
(3.) WE have heard learned counsel for the appellant Mr.A.R.Mehta and learned counsel Mr.M.R.Singhvi appearing on behalf of respondent No.2 and Mr.Sangeet Lodha, learned counsel appearing on behalf of respondents No.l and 3 at length and have also critically gone through the material available on record. The main thrust of argument of the learned counsel for the appellant is that learned Single Judge has not considered the fixed deposit account showing that the petitioner was maintaining an account of Rs.500/- for a continuous period of two years as envisaged under Bye-law No.31. Apart from the argument raised by the learned counsel for the appellant in special appeal before us as well as argument raised by him before the learned Single Judge, this Court is called upon to decide in the present special appeal as to whether if sub-sec. (4) of Sec.34 of the Rajasthan Co-operative Societies Act, 1965(hereinafler referred to as 'the Act of 1965') declares it lawful to the petitioner-appellant to contest the election for the office of Board of Directors can it be declared unlawful by bye-law No.31 declaring the petitioner-appellant not eligible to contest the election for the office of Board of Directors of the Bank. ;