Bombay High Court
Shri Dilip S/O Pundalikrao Bhoyar vs The Assistant Registrar ... on 21 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.2355 of 2016.
Dilip Pundalikrao Bhoyar,
aged about 48 years, Occ.-Agriculturist,
R/o.-Makardhokada, Tahsil Umrer,
District Nagpur. .... Petitioner.
Versus
1] The Assistant Registrar,
Cooperative Societies, Tahsil Umrer,
District Nagpur.
2] The Divisional Joint Registrar,
Cooperative Societies,
Office at Sitabuldi, Nagpur. .... Respondents.
Shri V.D. Raut, Adv for petitioner.
Shri Balpande, AGP for resp.nos. 1 and 2.
Coram : S.B. Shukre, J.
st
Dated : 21 April, 2016.
ORAL JUDGMENT
1] Rule. Rule made returnable forthwith. Heard finally by
consent.
2] The grievance of the petitioner is that he has been
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unlawfully disqualified for contesting the election of the General
Body of the Agriculture Produce Market Committee, Umrer. He
submits that the impugned order itself shows that the petitioner
had along with his nomination form attached the 'no dues
certificate' as of 31-03-2016, thereby clearly establishing the
fact that the petitioner as of 31-03-2016 was not the defaulter
within the meaning of Section 73CA(1)(i) Explanation-(a) of the
Maharashtra Co-operative Societies Act, 1960 [for short, 'the said
Act'] and yet by the impugned order, the Assistant Registrar, Co-
operative Societies i.e. respondent no.1 has disqualified the
petitioner with effect from 01-08-2015.
3] The learned Assistant Government Pleader opposes the
petition and states that the appeal is already pending before the
Divisional Joint Registrar, Cooperative Societies, Nagpur and the
sufficient opportunity of hearing has been granted to the
petitioner. He further submits that in any case the hearing of the
appeal is scheduled on May, 2016 and so this petition shall not be
entertained.
4] I would have accepted the contention of the learned
Assistant Government Pleader had there been a necessary
compliance with mandatory provisions of law. In this case the
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provisions of Section 73CA(1)(i) of the said Act have been
invoked for declaring the petitioner as disqualified for contesting
the elections. However, from bare perusal of the provisions of
Section 73CA(1)(i) of the said Act, as it applies to primary
agricultural credit societies, one can see that a person has to be a
defaulter on the date on which the decision in that behalf is to be
taken or on the date on which any right under the provisions of
the said Act is sought to be asserted by the person. In this case,
the right which the petitioner is asserting is about contesting of
the elections under the provisions of the said Act and therefore, it
must be seen as to whether or not the petitioner had incurred
the disqualification on the date on which he submitted his
nomination form i.e. on 16-04-2016. In this case, the notice had
been issued to the petitioner on 31-03-2016 and the impugned
order has been passed on 18-04-2016.
5] In this case, it is seen that before all the aforesaid dates,
the petitioner had already cleared his dues and was certified to be
not indebted to any of the societies and that is the reason why the
petitioner was issued a no dues certificate on 31-03-2016. This
being the fact situation as of now, I am of the view that, the
impugned order ought to have been stayed by the respondent no.2.
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6] In the circumstances, the petition is partly allowed. The
effect and operation of the order dated 18-04-2016 passed by the
respondent no.1 disqualifying the petitioner are hereby stayed till
the final decision of the appeal pending before the respondent
no.2. The parties shall appear before the respondent no.2 on
06-05-2016 at the time already fixed in the matter. On
appearance of the parties and after hearing them, the respondent
no.2 shall dispose of the appeal in accordance with law within
three days from 06-05-2016, keeping in view the observations
made by this Court as regards the scope and nature of Section
73CA(1)(i) of the said Act. The nomination paper submitted by
the petitioner shall be scrutinized in accordance with law.
7] Rule is made absolute in above terms. No costs.
8] The authenticated copy of this judgment be furnished to
both the sides.
JUDGE
Deshmukh
