Bombay High Court
Baghele Narottam Gendlal vs State Of Maharashtra Thr. ... on 2 April, 2016
Bench: S.B. Shukre
wp2065.16+.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2065 OF 2016
WITH
WRIT PETITION NO. 2066 OF 2016
W.P. NO. 2065/2016 :
Baghele Narottam Gendlal
aged about 54 yrs., Occp. Agriculturist
r/o Kinni (Dasgaon),
Tq. & Distt. Gondia.
W.P. NO. 2066/2016 :
Thakre Mangal Chudaman
aged about 50 yrs., Occp. Agriculturist,
r/o Makdi (Dasgaon),
Tq. & Distt. Gondia. :: PETITIONERS
.. Versus
..
1. State of Maharashtra
through District Deputy Registrar,
Cooperative Societies, Gondia.
2. Election Officer for Central Krushak
Seva Sahakari Sanstha Maryadit, Gondia.
3. Central Krushak Seva Sahakari Sanstha Maryadit,
Gondia, Registration No.112,
Tq. & Distt. Gondia. :: RESPONDENTS
...................................................................................................................................
Shri S. K. Tambde, Advocate for the petitioners.
Shri A. M. Balpande, A.G.P. for respondent No.1.
Shri Parag C. Tiwari, Advocate for respondent No.2.
Shri Anup Parihar, Advocate for respondent No.3.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 2nd APRIL, 2016.
O R A L J U D G M E N T
O R A L J U D G M E N T
wp2065.16+.odt 2/7
Heard.
2. Rule.
3. Rule made returnable forthwith. Heard finally by consent.
4. By this writ petition, the petitioners have challenged
rejection of nomination papers filed by them for contesting election to
respondent No.3-Society. The nomination forms have been rejected by
respondent No.2 on the ground that the petitioners have not signed
affidavit-B. According to the learned Counsel for the petitioners, this is
a minor defect, not of any substantial character and, therefore, could
have been permitted by respondent No.2 to be removed. He also
submits that in any case, the omission to sign affidavit-B was only the
clerical or technical error, which could have been allowed to be
corrected by respondent No.2. For these submissions, learned Counsel
places reliance upon the provisions of Rule 21(2) and rule 25(2)(4)(5)
of The Maharashtra Cooperative Societies (Elections to Committee)
Rules, 2014 (for short, Co-Op. Rules, 2014) and also the cases of
Godha Ram s/o Karam Chand Vs. State of Punjab and others - AIR
1966 PUNJAB 33 and Ravi Amrutrao Bagde Vs. Commissioner,
Amravati Division & others - 2006(2) Mh. L. J. 33.
5. Learned A.G.P. submits that rejection of the nomination
papers is correct and requires no interference. Learned Counsel for
respondent No.2 as well as respondent No.3 too agree with the
submission of learned A.G.P. They point out that signing of affidavit-B
wp2065.16+.odt 3/7
is a mandatory requirement and there is no provision under the
Maharashtra Cooperative Societies (Elections to Societies) Rules, 2014
permitting a candidate to remove the lacuna of signing the affidavit at
the subsequent stage. They also submit that in any case the lacuna
cannot be treated as of clerical or technical nature or as not of
substantial character.
6. Rule 21 of the Co-Op. Rules, 2014 relates to presentation of
nomination paper and requirements for valid nomination. Under
proviso to sub rule (3) there is mandatory requirement that the
candidate must submit an affidavit to the effect that he is not
disqualified under Section 73CA of the Maharashtra Co-operative
Societies Act, 1960 (for short, the Societies Act, 1960). This proviso
reads as under.:
"Provided that, the Nomination paper shall be accompanied
to an affidavit, specified by SCEA, mentioning the candidate is
not disqualified under section 73CA of the Act and the
attested copies of caste certificates."
7. Under Rule-25 (2) the Returning Officer may reject the
nomination on any of the grounds mentioned in clauses(a) to (d).
Clause (c) lays down that the nomination paper may be rejected on the
ground that there has been a failure to comply with any of the
provisions of rule 21 or 23. Sub-rule (2) is reproduced as under.:
"(2) The Returning Officer, shall then examine the
wp2065.16+.odt 4/7
nomination papers and shall decide all objections which may
be made to any nomination and may, either on such objection
or on his own motion, after such summary inquiry, if any, as
he thinks necessary reject any nomination on any of the
following grounds, that is to say :-
(a) that the candidate is disqualified for being
chosen to fill the seat by or under the Act, the rules and the
bye-laws;
ig (b) that the proposer or seconder is disqualified
from subscribing a nomination paper;
(c) that there has been a failure to comply with
any of the provisions of rule 21 or 23.
(d) that the signature of the candidate or the
proposer or the seconder on the nomination paper is not
genuine."
From the above provisions it is clear, as rightly submitted by
learned A.G.P. and learned Counsel for respondent Nos. 2 and 3, that
submission of an affidavit to the effect that the candidate has not
incurred any disqualification under Section 73CA of the Societies Act,
1960 is mandatory and if this requirement is not fulfilled, the
Returning Officer would be within the legal limits of his power to
reject the nomination paper. Affidavit-B is in respect of declaration
that the candidate has not incurred any disqualification under Section
73CA of the Societies Act, 1960. This affidavit, in this case, has not
been signed by the petitioner. If such a mandatory requirement has
wp2065.16+.odt 5/7
not been fulfilled by the petitioner, I do not think that any fault could
be found with the impugned order dated 05/3/2016.
8. Learned Counsel for the petitioners has referred to me the
provisions of sub-rule (4) and prviso to sub-rule (5) of Rule 25 as well
as proviso to sub-rule (2) of rule 21 of the Co-Op. Rules, 2014. On a
careful reading of these provisions of law, one would notice that they
relate to removal of minor defects or rebuttal of objections or removal
of clerical or technical errors, which had not been termed as of
substantial character.
9. Sub-rule (4) of Rule 25 relates to restriction on the power
of the Returning Officer to reject any nomination paper. It lays down
that the Returning Officer cannot reject the nomination paper on the
ground of any defect which is not of a substantial character. Failure to
comply with the mandatory requirement in this case, which is of non
signing of affidavit-B, cannot be seen as a defect of minor character.
Failure to comply with the mandatory requirement is some thing which
goes to the root of the whole matter and, therefore, it is a defect of
substantial character. The issue can also be looked at from another
angle. Failure to sign the affidavit-B would not be a defect in the
nomination paper in the ordinary sense of that term but would be
something rendering the nomination paper as incomplete. A defect is
something which indicates commission of irregularity in submitting an
application or nomination paper. It cannotes shortcoming or
wp2065.16+.odt 6/7
imperfection in the application or nomination submitted. It does not
include an omission to sign the nomination paper or the
application/affidavit. Therefore, in case of an omission to sign the
nomination paper or mandatorily required affidavit, the nomination
paper would have to be treated as an incomplete nomination paper,
which is as good as the nomination paper being not submitted at all.
So, sub-rule (4) would not be of any application to the facts of the
present case.
10.
Proviso to sub-rule (5) of rule 25, lays down that in case of
any objection being raised in respect of nomination paper by the
Returning Officer or any other person, the candidate concerned may be
allowed time to rebut it. This provision affords an opportunity to the
concerned candidate to rebut the objection. To rebut means to
disprove the objection, or show the objection to be wrong or baseless.
It does not include removal of the objection. If the objection is on
account of some lacuna or absence of signature, the candidate would
have been an opportunity under the said proviso to show that there is
no lacuna or there is present the signature. However, if the lacuna is
indeed there or the signature is indeed absent, the right of rebuttal
would not include the right of removal of the objection by making a
signature or filling up of the lacuna. In this view, I am fortified by the
view taken by this Court in the case of Ravi Amrutrao Bagde (supra).
wp2065.16+.odt 7/7
11. Proviso to sub-rule (2) of Rule 21 lays down that only that
clerical or technical error in the nomination paper could be removed
which relates to the names or numbers of the candidate, proposer or
seconder. This proviso does not permit removal of any error in respect
of non-signing of the mandatory affidavit. Therefore, even this
provision cannot be pressed into service by the petitioners.
12. Learned Counsel for the petitioner has also relied upon the
case of Godha Ram (supra). This case relates to clerical or technical
errors and, therefore, in the light what I have already observed, this
case law would be of no assistance to the case of the petitioner.
13. In the result, I find no substance in this petition and it
deserves to be dismissed.
Writ petition stands dismissed.
Rule is discharged. No costs.
JUDGE
wwl
