JUDGMENT
P.D. Desai, C.J.
1. The election for the posts of Chairman and Directors of Respondent No. 13 Bank were held on 29th April 1991. The result of the election was declared on 30th April, 1991. The appellant was the contestant for the post of Chairman and respondents No. 1 to 10 were amongst the contestants for the posts of Directors along with three other persons Respondent No. 1, hereinafter “called “the disputant filed a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960, hereinafter referred to as “the Act, in the Co-operative Court at Bombay, challenging the election of the Appellant and respondents No. 2 to 10. In the proceeding, the Disputant filed an interim application for the appointment of a Receiver / Commissioner to take charge of the papers to the disputed election, including the ballot papers, used and unused, ballot boxes, documents recording election results, counter-foils of ballot papers, Register of Members and papers containing specimen signatures of Members of Respondent No. 13 Bank. He also prayed for the grant of inspection of all documents and, more particularly, of the counter-foils of ballot papers. The Co-operative Court appointed and Advocate as Court Receiver and authorised him, inter alia, to grant inspection of the counter-foils of the ballot papers to the Disputant. In Appeal, the Co-operative Appellate Court slightly modified the said order. Against the said decision, the Appellant filed the Writ Petition out of which the present Appeal arises. The learned Single judge modified the Order under Appeal and confined the authority to grant inspection only to the counter foils of the used ballot papers. Hence the present Appeal.
2. An interesting point was raised by Mr. Ajit P. Shah, learned advocate appearing on behalf of respondents No. 1 to 3, by way of a preliminary objection, that the Letters Patent Appeal is not maintainable, because, firstly the writ petition was expressly filed under Article 227 and, many case, the facts did not justify the invoking of the jurisdiction of this Court under Article 226 and, secondly, three is no judgment within the meaning of Clause 15 of the Letters Patent conferring a right of appeal thereunder. We do not propose to go into these questions, since, in our opinion, in the present case, even assuming that the appeal lies under Clause 15 against the impugned decision, there is no substance in the Appeal.
3. Rule 56A-32 of the Maharashtra Co-operative Societies Rules, 1961, hereinafter referred to as “the Rules, deals with the production and inspection of election papers. It reads as follow:
“56A-32 Production and inspection of election papers (1)- While in custody of District Election Officer.
a) the packets of unused ballot papers,
b) the packets of used ballot papers, whether valid, tendered or rejected,
c) the marked copies of the voters list, shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the order of Court or other competent authority.
(2) All other papers relating to the election shall be open to public inspection.”
The scheme of the Rule is clear. There is a prohibition against the opening and inspection of contents of or production before any person or authority of the articles mentioned on clauses (a), (b) and (c) of sub-rule (1) except under the order of Court of other competent authority. All other papers relating to the election are open to public inspection under sub-rule. (2).
4. In the present case, the Co-operative Court appointed and Advocate as Court Receiver to take charge of papers pertaining to election programme, ballot papers (used and unused), ballot boxes and documents recording election results, counterfoils of ballot papers and papers containing specimen signatures of members and to seal and to bring the same in Court. Further direction was that the Court Receiver should give inspection only of counterfoils of ballot papers to the Disputant after receipt of proper application and not of any other documents. He was also ordered to seal the record under the signatures of the Disputant and an Officer of the Respondent No. 13 Bank and also his own. In appeal, the Co-operative Appellate Court modified the said order to the extent only that the Court Commissioner/Receiver was directed to give inspection of the counterfoils to the Disputant on working days during office hours with intimation to the Advocates. Rest of the order of the Co-operative Court was confirmed. The order under Appeal of the learned Single Judge further modified the said order by directing the Commissioner not to give inspection of the counterfoils of unused ballot papers to the Disputant and confirmed the rest of the order under challenge. Be it stated that though in the writ petition filed by some of the Respondent Directors (Writ Petition No. 4077 of 1991), the constitutional validity of section 91 of the Act was challenged, the learned Single Judge did not deal with the said question and granted liberty to the writ petitioners to raise the said challenge, if they so desired, by filing an independent writ petition at an appropriate, time.
5. The sole question for consideration, therefore, is whether this order is within the parameters of Rule 56A-32. Under the said Rule, three is no bar against the opening or inspection of or production before any person or authority of the counterfoils of used ballot papers. These counterfoils are not covered by Clause (a) of sub-rule (1) which speaks of the packets of unused ballot papers. Clause (b), which refers to the packets of used ballot papers, whether valid, tendered or rejected is also not attracted since ballot papers and their counterfoils and what is covered by Clause. (b) is ballot papers simpliciter and not their counterfoils. The counterfoils are not covered by Clause (c) also on its bare reading. That bring us to sub-rule (2) which provides that all other papers relating to election shall be open to public inspection. Far from there being any bar against the production and inspection of counter foils of used ballot papers, under sub-rule (2) there is a right of public inspection conferred by the statutory provisions.
6. In this connection, it is worthwhile to point out that Rule 93 of the conduct of Elections Rules, 1961, framed under the Representation of the People Act, 1951, which deals with the custody of ballot boxes and papers relating to election, provides, inter alia, that the packets of counterfoils of used ballot papers, whether valid, tendered or rejected, shall not be opened and contents thereof shall not be inspected by or produced before any person or authority, except under the order of a competent Court, vide Clause (c). The interpretation placed by us upon Rule 56A-32 finds support in the specific provision made in the analogus rules since similar provision does not find place in the rules under consideration.
7. One more point before parting with the case There is no absolute bar under Rule 56A-32 against the production and opening of any of the articles or things mentioned in Clauses (a), (b) and (c) of sub-rule (1) thereof. The bar can be lifted by an order of the Court or of any other competent authority. The power is thus vested in the Court or other competent authority, which will have to exercise consideration of ensuring the purity of election process. The secrecy of election process, which appears to be the underlying object behind the enactment of Rule 56A-32, cannot be allowed to outweigh the purity of election process, if the circumstances of a case so require Secrecy cannot have a higher place than purity in the scheme of things.
8. In our opinion, the discretionary order under Appeal passed by the learned Single Judge after considering all the relevant aspects does not call for interference at the appellate stage Sitting as the Court of Appeal, we do not think that there is any justification to interfere.
9. For the foregoing reasons, the Appeal fails and it is summarily dismissed.
10. An oral application for the stay of the operation of this order rejected.