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Judgment
U.V. Bakre, J.—By this Writ Petition, the Petitioner has sought the following reliefs:-
a) For a Writ or any other order or direction calling for the records and proceedings of the Returning Officer, the Respondent No.2 herein and upon perusing the legality and propriety of the impugned Order dated 29/12/2011 passes by the Respondent no. 2 at Annexure ''E'' to the petition, be pleased to quash and set aside the Impugned Order dated 29/12/2011 and thereby direct the Respondent No.2 to accept the nomination paper of the Petitioner so as to enable the Petitioner to contest the election.
b) Pending the hearing and final disposal of the petition, the Petitioner is entitled for interim reliefs directing the Respondent No. 2 to forthwith accept the nomination papers of the Petitioner and permit the Petitioner to contest the election of the Goa State Co-operative Milk Producers'' Union Limited scheduled on 15/01/2012.
c) Ex-parte ad-interm relief in terms of prayer clause (b) above.
d) Any other order this Hon''ble Court deems fit and proper in the facts and circumstances of the case.
The case of the petitioner, briefly stated, is as under :
The petitioner is a member representative of Shri Rudraksh S. D. V. S. Ltd., Ansole, Sattari, The Petitioner was on the Board of Directors of Goa State Co-operative Milk Producers'' Union Limited, Curti, Ponda-Goa (said society, for short), for the term 2007-2011. The Petitioner is eligible candidate and entitled to contest election to the Board of said society. The respondent no. 2 vide letter dated 13/12/2011, addressed to the Managing Director of the said society, was pleased to fix election programme of the said society, for the purpose of conducting election of the said society for the term of 2012-2017. The election programme is as under :-
SCHEDULE
Name of the Society The Goa State Co-operative Milk Producer''s Union Limited
Last date of making nominations 23/12/2011
Date of publication of nomination papers 26/12/2011
Date for scrutiny of nominations 27/12/2011
Date of publication of list of valid nominations 29/12/2011
Date and time of publication of final list of contesting candidates 03/01/2012
Allotment of Symbols 04/01/2012
Publication of list of candidates with symbols 04/01/2012
Date of Poll 15/01/2012
Counting of votes 16/01/2012
Date of declaration of results 16/01/2012
The petitioner filed his nomination papers on 21/12/2011. At the time of scrutiny of nomination papers, the respondent no.3 filed objections for the candidature of the petitioner. The case of the respondent no.3 as sought to be canvassed in the objections dated 27/12/2011 was that the documents enclosed by the respondent no.3 to his objections dated 27/12/2011 justified the transaction entered between the said society and M/s. S. G. Modular. It was the specific case of the respondent no.3 that M/s. S.G. Modular belongs to the wife of the petitioner namely, Mrs. Anita A. Mascarenhas. On the basis of the said specific contention in the objections dated 27/12/2011, the respondent no.3 claimed that the petitioner had direct interest in the transaction referred to in the objection, being the family member of Mrs. Anita A. Mascarenhas and as such according to the respondent no.3, the petitioner had misused powers of being the Director of the said society, for the benefits of his family member by giving business to M/s. S. G. Modular. The respondent no.3 therefore alleged that the petitioner was not eligible to contest the election as per Section 60 of the Goa Co-operative Societies Act 2001 (said Act, for short) and as per byelaw no. 20.2.6 of the said society. The said objections dated 27/12/2011 were furnished to the petitioner by the respondent no.2 and the petitioner was called upon to give his say on the said objections by 28/12/2011 on which date the matter was fixed for say and hearing. On 28/12/2011, the petitioner filed his reply to the objections dated 27/12/2011 alongwith a supporting affidavit. The case of the petitioner as set out in the reply dated 28/12/2011 inter alia was that the purported objections filed by the respondent no.3 were frivolous, misconceived in law on facts and mischievous; that the provisions quoted in the objections dated 27/12/2011 were neither relevant nor attracted; that the respondent no.3 had not produced any documents alongwith his objections dated 27/12/2011 to even remotely substantiate that M/s. S. G. Modular had any connection either with the petitioner or his wife Mrs. Anita A. Mascarenhas; that the statement that M/s. S. G. Modular belongs to the wife of the petitioner was a patently false statement and the same was made with malafide intention; that the petitioner had specifically stated that M/s. S. G. Modular neither belonged to the wife of the petitioner nor did Mrs. Anita A. Mascarenhas had any connection with M/s. S. G. Modular; that the respondent no.3 had made casual, vague and mischievous statements. The petitioner denied the case sought to be canvassed by the respondent no.3 in the objections dated 27/12/2011. Alongwith the reply dated 28/12/2011, the petitioner filed an affidavit categorically stating on oath that neither the petitioner nor his wife have any business in the name and style of M/s. S.G. Modular nor was the petitioner or his wife, in any manner, connected with the business of M/s. S. G. Modular. The respondent no.3 neither filed any rejoinder nor filed any document either denying or disputing the case set up by the petitioner in his reply dated 28/12/2011. However, the respondent no.3 sought to produce a bill bearing no. 49 dated 20/08/2009 of M/s. S. G. Modular and a document captioned as Goa State Co-operative Milk Producers'' Union Limited, proposal for financial expenditure dated 14/07/2009. The said two documents were sought to be tendered during the course of hearing of the objections. On 29/12/2011, at about 5.00 p.m., the respondent no. 2 informed that the nomination paper of the petitioner was rejected. The petitioner immediately on 29/12/2011 applied for the order/ statement of reasons rejecting the nomination paper of the petitioner. Upon the application made by the petitioner, the respondent no. 2 informed that the order was not ready and to collect the same on 30/12/2011. On 02/01/2012, after persisting request being made by the petitioner, the petitioner was furnished a copy of the impugned Order at about 13.45 hours. The rejection of the nomination papers is improper and contrary to the provisions relied upon by the respondent no. 2. The reasons given by the respondent no. 2 are illegal, irrational, improper and unsustainable in law. Hence, the Petition.
The respondent no.3 has filed his affidavit in which he has taken following preliminary objections :
(a) The petitioner has an alternate efficacious remedy and hence the writ petition under Articles 226 and 227 of the Constitution of India may not be entertained;
(b) The petition raises disputed questions of fact which cannot be gone into, in the present petition;
(c) The petitioner has approached the Court with unclean hands. The petitioner has not disclosed the relevant and material facts and the entire petition suggests false facts;
(d) The petition suffers from non-joinder of necessary parties, in as much as all the contesting candidates are required to be joined as parties to the present proceedings.
On merits, the case of the respondent no.3 is as follows :-
The Election Roll 2010 of assembly Constituency 18-Poriem, shows that the house number of the petitioner, his brother Julio Mascarenhas and his sister-in-law Smt. Santan Jyulio Mascarenhas is bearing no.58 which makes it amply clear that the petitioner, his brother and his sister-in-law stay in the same house. The said Electoral Roll also shows that the petitioner and Shri Julio Mascarenhas are the sons of Anton Mascarenhas. It further shows that Smt. Santan Jyulio Mascarenhas is the wife of Jyulio Mascarenhas. The petitioner is brother of the husband of Mrs. Santan Mascarenhas, who has a contract with the said society and in view of above undisputed facts, the petitioner is not entitled and not eligible for contesting the elections to the Board of the said society. In terms of Section 60(1) of the said Act, a person is disqualified to contest the elections of the board of the Goa State Co-operative Milk Producers'' Union Limited, if any member of his family has direct or indirect contract with the Union. The Petitioner and the brother of the petitioner Shri Jyulio Mascarenhas are of Goan origin and as such, they are governed by the Portuguese Personal Law which is prevalent in the State of Goa. The brother of the petitioner Shri Jyulio Mascarenhas, being married under the Regime of Communion Of Assets, by operation of Law, has 50% of the share in every property and the income of his wife Mrs. Santan Mascarenhas. The prohibition contained in the Bye-law, not to have contract with the family members of the contesting candidate, is to ensure the purity in the co-operative movement and more particularly, in the management of the Co-operative Societies. The purpose of such prohibition is also to ensure that the candidates and their family members do not have an pecuniary interest while dealing with the society. Keeping in mind the object of such prohibition, the wife of the brother of the petitioner is also included in the definition of "member of family" as contemplated under the said Act. M/s. S. G. Modular, a Proprietary Concern, belonging to Mrs. Santan Mascarenhas, was awarded some repair work and supply order by the said society. Her husband becomes co-owner, to the extent of 50%, in M/s. S. G. Modular. The brother of the petiitoner has therefore direct contract with the said society. u/s 60(1) of the Goa State Cooperative Societies Act, the brother is included in the definition of "member of the family". The said Society has a direct or indirect contract with the brother of the petitioner. Consequently, petitioner is disqualified u/s 60(1) of the said Act and read with Bye-law No. 20.2.6, of the said society.
The petitioner then filed Affidavit-In-Rejoinder, denying the statements made in the reply of the respondent no. 3, which are contrary to his case. He further states as follows :-
The respondent no.3 in his objections dated 27/12/2011 filed before the Respondent no.2 had set up a specific case namely that M/s. S. G. Modular belongs to the wife of the petitioner, namely Mrs. Anita A. Mascarenhas and as such according to the respondent no. 3 his candidature was required to be rejected. The affidavit-in-reply now filed by the respondent no.3 will indicate that the respondent no.3 has now made an attempt to take a different stand and in fact has taken a volta face apparently on the basis of the order impugned in the present petition. It was neither the case of the respondent no.3 before the respondent no.2 that M/s. S. G. Modular belonged to the sister-in-law of the petitioner nor were any documents like the one sought to be introduced for the first time with the affidavit-in-reply, produced before the respondent no.2. The family of his brother Julio Mascarenhas lives separately in a separate economy and their relations are not cordial, since last three years and he has been staying separately at Bhirondem. The sister-in-law does not fall in expression ''family'' as used u/s 60(1) of the said Act and/or the bye laws of the said society. The statement that the brother of the petitioner Shri Julio Mascarenhas is married under the regime of communion of assets and as such by operation of law has 50% of the share in every property and the income of his wife Mrs. Santan Mascarenhas is not admitted.
Shri A. D. Bhobe, learned counsel for the petitioner, submitted that before passing the impugned order, the respondent no. 2 did not give notice of inquiry and opportunity to rebut. He pointed out that as per the provision of law, the petitioner was required to be given time of two days (excluding holiday) to rebut the objections filed by the respondent no.3 and further the respondent no. 2 was required to give reasons for rejection and supply the copy of the order of rejection immediately on demand. He read out the provision of Rule 69 of the Goa Co-operative Societies Rules 2003 (said rules, for short) and argued that none of the above requirements were complied with by the respondent no. 2. Learned Shri A. D. Bhobe further argued that the expression "members of family" under Explanation to Section 60(1) (d) of the said Act means a wife, husband, father, mother, brother, sister, son, daughter, son-in-law, or daughter-in-law and it does not include the sister-in-law. He also argued that the petitioner has no connection with M/s. S. G. Modular. He contended that even otherwise, as per byelaw no. 20.2.6 of the said society, contract had to be a subsisting one as on the date of filing nomination. He showed the certificate dated 7/1/2012 issued by the Managing Director of the said society, which certifies that M/s. S. G. Modulars was given work during June, 2009 which has been completed and payment is made on 14/07/2009 and no work is pending. Learned Counsel for the petitioner argued that in the objections dated 27/12/2011, the respondent no. 3 had alleged that M/s. S. G. Modular belongs to Mrs. Anita A. Mascatenhas i.e., the wife of the petitioner but in the Affidavit-in-reply, he has taken a volta face, on the basis of the impugned order and has stated that M/s. S. G. Modular belongs to the sister-in-law of the petitioner, etc. According to Shri Bhobe, the respondent no.3 cannot be permitted to enlarge the scope of his objections.
In so far as the availability of efficacious remedy is concerned, learned Shri A. D. Bhobe contended that matter has to be examined by the High Court under Article 226 of the Constitution and that the petitioner does not deserve to be relegated to alternate remedy of raising dispute u/s 83 of the said Act, after the election is held. He also argued that in view of the contents of the objections dated 27/12/2011, filed by the respondent no. 3 before the respondent no. 2, the petitioner cannot be said to have approached the court with unclean hands. According to Shri Bhobe, other candidates contesting the election are not necessary parties since none of them had objected to the candidature of the petitioner and their rights to contest the election are not affected.
Learned Advocate Shri A. D. Bhobe, has relied upon following judgments, in support of his arguments:
(a) Anant Janardan Patil Vs. State of Maharashtra and Others,
(b) "Deepak Vishwasrao Khule Vs. Collector and others" 2009 (5) Bom. C.R. 846
(c) Mohd. Talib Vs. Dr. A.S. Kuchewar,
(d) "Smt. Mayaraju Ghavghave Vs Returning Officer for Gram Panchayat, Dhamangaon and Another" [ 2004 (4) ALL MR 258]
(e) Dalsing Rajput Vs. State of Maharashtra and Others,
(f) Sou. Indumati Laxman Bhakare Vs. The State of Maharashtra and Others,
(g) "Dhondiram Ghorpade Vs The Collector, Ahemednagar and 32 others", Writ Petition No. 3707 of 2010 (unreported judgment from Bombay High Court, Aurangabad Bench)
(h) "Shri Anthony John Menino Rodrigues V/s. Shri Gregory Bruno Fernandes and another", Writ Petition No. 306 of 2008 (Unreported Judgment of Bombay High Court at Goa)
Shri V. Rodrigues, Learned Additional Government Advocate, on behalf of the respondents no. 1 and 2, argued that the respondent no.,2 had passed the impugned order dated 29/12/2011, by conducting the inquiry stipulated under the provisions of the said Act. He argued that the provision of byelaw no. 20.2.6 includes even the past transactions and that the expression "member of family" includes the wife of the brother. He pointed out that in reply to the objections filed by the respondent no.3, the petitioner had given evasive reply without complete disclosure.
Shri D. J. Pangam, learned Counsel, on behalf of the respondent No.3, argued that the order dated 29/12/2011, passed by the respondent no. 2, clearly mentions that the wife of the brother of petitioner is the owner of M/s. S. G. Modulars, in spite of which, the petitioner has not disclosed the above fact in the petition nor has he challenged the finding that Mrs. Santan Mascarenhas is the owner of M/s. S. G. Modulars and wife of his brother. Therefore, according to Shri Pangam there is suppression of material fact. He further argued that there are 26 candidates in the array and addition of petitioner to the list would make them suffer competition from one more person. He therefore contended that all the said 26 candidates are necessary parties. He pointed out that the expression "brother" should include his wife because purity in the functioning of the society is necessary and it is very easy to defeat the provision explaining the meaning of "member of family". He argued that the provision should be interpreted in its widest meaning and not in a restricted meaning. He further argued that in terms of Portuguese Law applicable to Goa, the brother of the petitioner gets 50% share in the properties of his wife and her income and therefore the brother of the petitioner is also the owner of M/s. S. G. Modulars alongwith wife. He argued that the provision of the byelaw no. 20.2.6 applies to "any other transaction" and in far as such transaction is concerned there is no relation to subsisting contract. He pointed out that in the petition there is no averment/ground that there is no subsisting contract with M/s. S. G. Modulars. In the circumstances above, the learned counsel argued that the petitioner is not entitled to any relief.
We have carefully considered the rival contentions and perused the record as also the Judgments cited.
There is no dispute that altogether there are 26 contesting candidates for election to the Board of the said society. The election is scheduled to take place on 15/01/2012. The petitioner has neither added the said 26 candidates nor the said society as parties to this petition. May be that the said society is only a proper party but as far as the said 26 candidates are concerned, in our considered opinion, they are all necessary parties. This is because, they are contesting the election under a belief that the competition is amongst 26 candidates and accordingly they must have planned their strategy of campaign. If the present petition is allowed or even if the interim reliefs as prayed for are granted, then there would naturally be one more candidate in the field and the other 26 candidates will suffer competition from him. Hence, as has been rightly argued by Shri. D. J. Pangam, the other candidates will be directly affected. The petition therefore suffers from non-joinder of necessary parties. The rights of those other candidates would be prejudiced, if order as prayed for is passed, without hearing them.
It is true that in the objections dated 27/12/2011 filed by the respondent no.3, it has been stated that M/s. S. G. Modular belongs to Mrs. Anita A. Mascarenhas who is wife of the petitioner. May be, on account of the above, in the reply dated 28/12/2011 to the said objections, the petitioner only denied the above facts, without stating other relevant facts. However, the petitioner cannot be heard to contend that he does not know the contents of the impugned order dated 29/12/2011 passed by the respondent no. 2. In this order, it is clearly stated that further enquiry into the matter disclosed that one Mrs. Santan Jyulio Mascarenhas is owner of M/s. S. G. Modulars, a proprietory concern situated at Bhivande, Sattari - Goa and she is in relation and is a member of the family of Mr. Augustinho Mascarenhas (petitioner), being wife of his brother Mr. Jyulio Mascarenhas. It has been specifically mentioned in the order that since Mrs. Santan Mascarenhas is a sister-in-law of the opponent (petitioner)c, he violates the eligibility criteria specified u/s 60(1) of the Act to contest the election of the said society as per sub-clause 20.2.6 of bye-law no. 20. The petitioner, in this petition, has, inter alia, prayed that the said order dated 29/12/2011, passed by the respondent no. 2 be quashed and set aside. Thus, there was a direct issue on fact as to whether there is relationship of the petitioner with Mrs. Santana Mascarenhas and if yes what is the nature of the same. A perusal of the petition reveals that the petitioner has nowhere disclosed whether Mr. Jyulio Mascarenhas is his brother or not and whether Mrs. Santana Mascarenhas, is his sister-in-law, being wife of Mr. Jyulio or not. The petitioner has stated in ground no. ''F'', inter alia, that the petitioner was not afforded any opportunity, by the respondent no. 2, to deal with the issue pertaining to M/s. S.G. Modular and the relations of Santana Mascarenhas while considering the objections. But in the present petition, the petitioner had all the opportunity to bring forth before this court the said issue pertaining to M/s. S.G. Modular and the relations of Santana Mascarenhas and if there was truth in the same, then as to how it does not matter. It is only after the respondent no.3, in his Affidavit-In-Reply took preliminary objection that the petitioner has approached the court with unclean hand and has not disclosed relevant and material facts, the petitioner in the Affidavit-In-Rejoinder admitted that Jyulio Mascarenhas is his brother. But still the petitioner has not directly admitted that Mrs. Santana Mascarenhas is the wife of his brother. He has not stated whether he knows or not that Mrs. Santana Mascarenhas is the owner of M/s. S. G. Modular. In the rejoinder, the petitioner has tried to project that he is residing separately alongwith his wife and daughter. The petitioner has deliberately suppressed the relevant and material facts, in the petition and therefore has not approached this Court with clean hands. This conduct of the petitioner is such that he does not deserve the discretionary remedy.
On the above two counts itself, the petitioner is not entitled to any of the reliefs prayed for in this petition. For the same reasons, we are not inclined to entertain this writ petition.
None of the Judgments cited by the petitioner deals with the above points and therefore we do not deem it necessary to refer to the principles laid down in the said authorities. We also do not deem it necessary to deal with other submissions made on merits. In view of the above, the Writ Petition stands dismissed. However, all points are kept open, to be dealt with, in appropriate proceedings, if hereinafter filed.