Disqualification under Rule 66 passed by District Co-operative election officer- remedy to challange the same. DJR under Apeal/ Revision or directly to High Court.
I C Naik
Shailesh Thakur (from Maharastra) appears to be the first victim under new cooperative elections regime. Rule 66 of the Maharashtra Co-operative Societies (Election to Committee) Rules, 2014 (cooperative election rules) mandates the District Co-operative Election Officer (DCEO) to disqualify a member who contested the election for a period of three years if he fails to submit an account of his Election expenses within 30 days without sufficient cause. The question is this order is appealable or not?. If not, what is the remedy for a wrong order? The response has turned out to be a post in itself.
The Constitution of India mandates the States to provide by law an independent State Cooperative Election Authority (SCEA) pursuant to Article 243ZK(2). Section 73CB was inserted in the MCS Act 1960 to provide for this mandate. The Act also empowers the State Administration to prescribe the procedure to be followed by the SCEA. Pursuant to Sub-Section 1 of Section 165 of the MCS Act 1960 the State Government can frame rules for carrying out the purpose of that Act. Sub-Section 2 thereof provides a illustrative list of matters which could be covered by the Rules. About election procedures there is a new Clause reproduced below.“(xxxv-a) prescribe the procedure for the election to societies, provide for intimation and making arrangements for holding the elections of the committee to the election authority; to provide for preparation of electoral rolls, for conduct of elections of the society or class of societies, also for classification of societies for this purpose, to provide conditions of services, tenure of office of the State Co-operative Election Authority under section 73CB;”; There is No substantive power is prescribed herein which the legislature alone is expected to exercise and cannot be delegated.
The objective of the legislature conferring rule making power to the Executive is to facilitate carrying out of the purpose of this Act. The Act is a substantive law and any rule contrary to provision of the Act is ultra-virus the Act. The Constitution having laid down a mandatory framework of cooperatives, the State Legislatures have to align the Cooperative Societies Law to this framework. Articles 243ZJ, 243ZK, 243ZL provides broad framework for managing committees; constitution, strengths, tenure, election, suspension etc. which must form part of a law enacted by every State.
The MCS Act 1960 in Chapter VII – MANAGEMENT OF SOCIETIES {SS72-80} lays down law on all these matters. Section 73CA lays down a law on disqualification of committee and its members and the conditions therefore. Sub-Section 5 of Section 75 provides for the Registrar’s power to disqualify a member of the committee who without any reasonable excuse failed to comply with any of the sub-section (2), (2A) (3) or (4) for such period not exceeding five years. Sections 78/78A provide for (i) Power of removal of committee or member, thereof and (ii) Power of supersession of committee or removal of member thereof. But both these sections have a following proviso, which applies to the most housing societies namely: Provided that, nothing in this sub-section shall apply to a society, where there is no Government shareholding or loan or financial assistance in terms of any cash or kind or any guarantee by the Government :
Where making of an adverse order is provided in law, at least one appeal provision is normally expected, which is not the case here against disqualifying order by DCEO. In any case Sub-Section 4 of Section 152 provides that all orders passed under the Act shall always be subject to the provisions for revision under Section 154 of the Act. Sub-Section 2 of this Section 154 provides that the revision shall lie to the State Government if the decision or order is passed by the Registrar, the Additional Registrar or a Joint Registrar, and to the Registrar if passed by any other officer.
It is undoubtedly not a happy position as attending to the member’s grievances concerning election is not provided in law or in rules in a forthright manner. Although SCEA is an authority independent of the Registrar of cooperative societies several matters concerning election are included under the regime of the the Registrar. For example Sub-Rule (4)(a) of Rule 75 concerning Election Procedure of C type cooperative societies says “If the nomination is rejected by the Returning Officer, the candidate may prefer an appeal to Registrar within a period of three days from the date of rejection of nomination. Registrar shall dispose of such appeal within ten days of the date of receipt of such appeal.” Similar provision is found in Sub-Section 1 of Section 152A – Appeal against rejection of nomination Paper at election” The Maharashtra cooperative societies (Amendment) Act 2014 vide its clause 75 inserted following additional appeal provision which is quite confusing. “ In the case of a society, an appeal shall lie to the officer as may be specified by the State Co-operative Election Authority, who shall dispose of such appeal within ten days from the date of receipt of such appeal and the decision of the such officer, shall be final.” The confusion is whether it is a further appeal to SCEA against the decision of the Registrar in first appeal?
Another exploratory suggestion is as under:
The provisions in the MCS Act 1960 concerning disqualification of members to be on the Committee, are indicative of the fact that it is in legislative domain as it is the effect of suspending the very basic right of a member of cooperative society to be part of its management. Power conferred vide Rule 66 as aforesaid is not conferred by or under a legislative authority. The Rule making power is very precise about laying down administrative steps to be followed by the staff of SCEA. The legislature could not intend to leave such important power to be exercised under Rules framed by the bureaucracy. In that the virus of Rule 66 can be successfully challenged under a writ.
