Bombay High Court
Sayanna Sayanna Shengulwar vs The State Of Maharashtra And ... on 1 August, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8194 OF 2016
Dr. Sayanna Sayanna Shengulwar PETITIONER
Age - 65 years, Occ - Agriculture
R/o Kundalwadi, Taluka - Biloli
District - Nanded
VERSUS
1. The State of Maharashtra RESPONDENTS
Through Secretary,
Department of Co-operation,
2.
Mantralaya, Mumbai
District Deputy Registrar,
Co-operative Societies,
Nanded
3. The Returning Officer,
For the election of the
Vividh Karyekari Seva Sahakari Sanstha Ltd.,
Kundalwadi, Taluka - Biloli
District - Nanded
4. The Vividh Karyekari Seva Sahakari Sanstha Ltd.,
Kundalwadi, Taluka - Biloli
District - Nanded
Through its Secretary,
5. Vitthal Chinnanna Kundulwar,
Age - Major, Occ - Agriculture
R/o Kundalwadi, Taluka - Biloli
District - Nanded
.......
Mr. V. D. Salunke, Advocate for the petitioner
Mr. A. P. Basarkar, AGP for respondent-State
Mr. S. K. Kadam, Advocate for respondent No.3
Mr. A. N. Nagargoje, Advocate for respondent No.4
Mr. S. S. Thombre, Advocate for respondent No.5
.......
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[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 1st AUGUST, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the appearing parties finally with consent.
2. The petitioner is before this court aggrieved by order dated
18th July, 2016 passed by returning officer in the elections to the
managing committee of Vividh Karyekari Seva Sahakari Sanstha
Ltd., Kundalwadi, under which his nomination has been rejected
and the same has been maintained by the appellate authority -
District Deputy Registrar, Co-operative Societies, Nanded -
respondent No.2.
3. Mr. V. D. Salunke, learned advocate appearing for the
petitioner contends that the petitioner has been a member of the
VKSS Society, Kundalwadi in his individual and independent
character, with reference to land bearing Gut No.248. Late
Nagabai Sayanna Shengulwar was his mother. Under a scheme
floated by the VKSS Society for irrigation of lands of its
members, certain loan had been raised by the society from
federal society and apportioned liability of repayment had been
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fastened onto the members who were to benefit from the
scheme, in proportion of their land holdings. Accordingly, said
Nagabai had undertaken to repay her apportioned liability
towards the loan. She had been member of the VKSS Society in
relation to her land holding bearing No.302/1/B. She had not
repaid loan during her lifetime. She died in 2008. Her aforesaid
property had been encumbered with the liability undertaken by
her.
4.
Learned advocate contends that the petitioner, as a
member in his independent and individual character, has applied
for nomination to membership of managing committee of the
VKSS Society, however, the same has been rejected by a very
terse order by the returning officer, with reference to section
73CA (A1) of the Maharashtra Co-operative Societies Act, 1960
(The returning officer's order contains section 79 (CA) 1 (i) of
the Act) based on a purported complaint by present respondent
No. 5 alleging that the petitioner is a defaulter of the VKSS
society, since he has failed to repay the loan undertaken to be
repaid by deceased Nagabai. Learned advocate points out that
respondent No.5 purports to allege that requisite demand notice
could not be issued to the petitioner, for the petitioner had been
the director of the VKSS Society and further that the Manager /
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Secretary of respondent No.5 had been under his influence, as
such, requisite legal compliance of issuing demand notice could
not be possible.
5. With reference to the objections, according to learned
advocate, the petitioner had submitted his written resistance
stating that even his mother Nagabai had not taken any loan
from the VKSS society and as such, she could not be a defaulter.
Moreover, the petitioner in his independent and individual
capacity, has been member and his membership is not after
death of his mother. It is being submitted that it is the VKSS
Society, which is defaulter and not its members. It is only
liability is agreed to be shared and therefore, a charge is allowed
over the land towards security for repayment. It has further
been stated that since no notice had been given in respect of
alleged default, the petitioner would not incur any disability as a
defaulter pursuant to section 73CA of the Act. Learned advocate
further contends that it is in the capacity of a legal heir,
property bearing gut No.302/1/B has been inherited by the
petitioner as one of legal heirs. According to learned advocate,
despite such reply being given, without applying any mind to the
same, by a terse order, his nomination has been rejected by the
returning officer. Learned advocate further goes on to submit
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that the appeal therefrom also failed and as such, the petitioner
is before this court.
6. Learned advocate submits that appellate authority as well
has not been able to comprehend the situation, factual or legal,
for the reason that the observations as are appearing, which
have weighed with the appellate authority while dismissing the
appeal are depiction of the same, as it has been observed that
the petitioner has become member of the society after death of
his mother Nagabai. It is further being submitted that during the
course of election programme, a letter purportedly had been
issued, which was during the course of arguments before the
appellate authority was sought to be relied on. It cannot be said
to be a demand notice in order to support rejection of his
nomination. He submits that even otherwise, going by the date
of the communication relied on, period of one month would not
be over until date of nomination, as per the election programme.
7. Learned advocate purports to take aid of provision of
section 26 of the Act as well as purports to make reference to
section 73CA of the Act, to submit that since there cannot be
said to be any demand notice in the eye of law for repayment of
loan, it cannot be said that the petitioner is a defaulter and upon
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that ground his nomination is not liable to be rejected.
8. Mr. Salunke, learned advocate, laying emphasis on the
word "him" occurring in section 73CA (1) (b) submits that
provision would hold good only in the case, it can be said that
the loan is granted to a member. Here, in the present case,
according to him, it is not the case that it can be said that the
loan is granted to the petitioner, when it has been admittedly a
liability incurred by mother and not him.
9. In support of his submissions, Mr. Salunke relies on a
judgment in the case of "Abdul Khalekh Mohd. Musa V/s Ramkrishna
Maroti Bangar and Others" reported in 1985 (2) Bom.C.R. 250 and
particularly draws attention to paragraphs No.7 and 8 thereof,
which have in its focus the procedure that would be said to have
been observed while scrutiny of nominations takes place and
further to buttress his submissions, that it is the nomination
paper, which is the subject matter of the scrutiny which is not
supposed to be general investigation into various objections.
10. Additionally, he submits that upon hearing advocates for
the respondents that the controversy cannot be allowed to be
deflected to other aspects being now argued beyond the scope of
the complaint lodged before the returning officer, which
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according to him is being done by the learned advocates for the
respondents now trying to rely on such documents which were
not relied on or were not before the returning officer or for that
matter even production of the document dated 13 th July, 2016
was beyond the scope of the complaint during pendency of the
appeal.
11. Judgment in the case of "Ravindra Bhaurao Patil Shishode V/s
State of Maharashtra and Others" reported in 2010 (5) Mh.L.J. 410 is being
relied on for the purpose that disqualification could be incurred
as a defaulter only if the same is incurred in a particular manner.
In the present case, according to him, it emerges on record that
there is no notice for repayment of any amount due to the VKSS
Society as would be required to invalidate his nomination with
reference to section 73CA of the Act. He further lays emphasis
on an unreported order of division bench of this Court dated 22 nd
September, 2015 in writ petition No.9182 of 2015 which is with
reference to section 26 of the Act, particularly second proviso to
sub section (1) of section 26 of the Act, wherein it has been
prescribed that society shall give a notice of demand to the
members and give reasonable period to comply with, in case of
increase in minimum contribution of member in share capital in
order to enable the members to exercise right of membership.
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He particularly lays emphasis on the observations of paragraph
No.6 of said order.
12. Mr. S. S. Thombre, learned advocate appearing for
respondent No.5 contends that the petitioner has been director
of the VKSS Society at the relevant time and was as such, an
influential person in the managing committee of the society. He
submits that the petitioner had made himself liable to the
responsibility of repayment after inheriting property and had
executed a document in this respect. He has stepped into the
shoes of his mother. Having undertaken such a liability and being
a member and having not paid any amount, in discharge of the
liability, it is indeed a default. When a member takes upon
himself such a liability and does not discharge it, he is a
defaulter, whether the liability is from mother or any other
person. He submits that the liability has been undertaken
voluntarily and by executing documents, as required under the
provisions of the Maharashtra Co-operative Societies Act,
particularly, sections 47 and 48. He submits that submission on
behalf of the petitioner that no notice of demand had ever been
served on him, is a runaway argument in order to suit
petitioner's convenience, for, the provision of giving notice as is
contained in section 73CA of the Act would not hold the case of
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the petitioner. Liability that was undertaken to be discharged was
a long term liability and the amount due under the same had not
been discharged and the case would be covered by section 73CA
(1) (b) rather than as is sought to be contended by learned
advocate for the petitioner under section 73CA (1) (c) (ii) of the
Act. He further submits that even pursuant to section 73CA (1)
(c) (ii) of the Act, it was a liability to be discharged within thirty
days from the date of taking loan, which the petitioner has
palpably failed to discharge.
13. Mr. Thombre purports to rely on a few documents, which
are appended along with affidavit in reply filed on behalf of
respondent No.5, particularly, a communication which was
purportedly issued in the name of Nagabai to state that as a
matter of fact, even that deficiency cannot be said to be available
for taking a cover. A demand notice cannot be said to have not
issued at all. He further submits that, however, in the case falling
under section 73CA (1) (b), such a demand notice is not
envisaged under the provisions of law and the person becomes
defaulter as soon as he fails to pay any of the installment. Mr.
Thombre, purports to repel the argument in respect of word
"him" occurring in section 73CA (1) (b) of the Act stating that
when the petitioner has undertaken to repay the loan by
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executing documents, he places himself into the shoes of the
person who has undertaken to discharge the liability and as
such, it is not open for the petitioner to veer around and contend
that the loan is not availed by him. He submits that while the
document is executed, it is the original person, who stands
replaced by the person, who executes documents and as such, it
is not open for petitioner now to contend that said clause under
section 73CA of the Act would not hold him.
14.
Mr. Thombre, further submits that the liability had been
undertaken in 1997 and was supposed to be repaid by 2007, as
yet, an amount of Rs. 2,69,293/- is outstanding against
petitioner. He submits that, as such, since the amount has not
been paid, a default is committed, it is continuing default. He for
said purpose, purports to rely on a supreme court judgment in
the case of "Pundalik V/s District Deputy Registrar, Co-operative Societies,
Chandrapur and Others" reported in (1991) 2 SCC 423 and lays
emphasis on paragraphs No.10, 11 and 12 thereof contending
that as in said case, it has to be considered that the petitioner
has been in arrears in respect of discharge of the liability. He
submits that the day an installment falls due and on the due
date, failure to pay results in default and the default continues
from day to day until it is repaid. He submits that the
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observations impeccably apply to present position. He, therefore,
submits that it is a tenuous argument that land being charged
with the loan being taken by mother, the petitioner is not liable.
He submits that once he steps into the shoes of his mother, the
argument shall fail, for, he replaces the person wholly and it
would not be for him to take only benefits and deny liability.
15. Mr. Nagargoje, learned advocate for respondent No.4
society states that in fact and in law, it would be the petitioner
who would require to discharge the liability undertaken by his
mother, since he replaces her, undertaking said liability by
executing documents. He submits that the notice for repayment
of the loan issued in 2008 may have been issued in the name of
deceased Nagabai, since the society being unaware about her
death then.
16. Mr. S. K. Kadam, learned advocate for respondent No.3
contends that the inquiry undertaken at the time of scrutiny of
nominations is of summary nature and the authorities have
relied on the documents as have been submitted at the time of
the scrutiny. He submits that even if it is assumed that loan has
been availed by VKSS Society, the liability for repayment has
been incurred by the members by the acts of their volition and
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the loan availed by the society had been defaulted along with the
society by the members. He, therefore, submits that with
reference to the complaint and the record as had been submitted
before the authorities, proper decisions have been taken and the
same do not require any disturbance.
17. Having heard the arguments advanced as aforesaid,
factual position appears to be that Nagabai, mother of the
petitioner had undertaken to discharge the liability of an
apportioned portion and had kept charge over her property. The
petitioner, who had already been a member in the society in his
individual capacity, had inherited the property upon which charge
had been kept for discharge of the liability. He had executed
certain documents with reference to said liability. It thus appears
that he has undertaken to discharge said liability. The liability
incurred by deceased Nagabai has not been disputed nor
execution of document and taking over the liability. Once having
taken the liability being a member, it ostensibly appears that it
was the liability to be discharged by such member and it is not
the case of the petitioner that he has discharged the liability
before filing of the nomination. Section 73CA of the Act disables
a person who is defaulter of any society from contesting
elections of the managing committee of the society. Here, in the
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present case, the petitioner appears to have executed certain
documents taking upon himself the responsibility of repayment
and has not discharged the liability. It appears at least, at this
stage that the petitioner may not be said to have ably
demonstrated that in spite of factual position adverted to above,
he would yet be able to be considered eligible. This being a
question which will be required to be considered in an inquiry
which would not be of a summary nature, as such, I do not
consider that the returning officer or for that matter the
appellate authority has committed such a grave error so as to
set aside said orders.
18. In view of emerging disputed position, the writ petition is
not being entertained and is dismissed leaving it open for the
petitioner to resort to such proceedings as would be advised and
as would be available in facts and circumstances and in law. Rule
stands discharged.
[SUNIL P. DESHMUKH, J.]
drp/wp8194-16
