Bombay High Court
Govind Tukaram Birajdar vs The State Of Maharashtra And ... on 26 July, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7783 OF 2016
Govind Tukaram Birajdar PETITIONER
Age - 62 years, Occ - Agriculture
R/o Salegaon, Taluka - Lohara,
District - Osmanabad
VERSUS
1. The State of Maharashtra RESPONDENTS
Through Secretary,
Department of Co-operation,
2.
Mantralaya, Mumbai
The Returning Officer,
For the election of
Vividh Karyekari Seva Sahakari Sanstha Ltd.,
Salegaon, Taluka - Lohara
District - Osmanabad
3. The Vividh Karyekari Seva Sahakari Sanstha Ltd.,
Salegaon, Taluka - Lohara
District - Osmanabad
Through its Secretary,
4. Vyankat Vasantrao Vadure
Age - Major, Occ - Agriculture
R/o Salegaon, Taluka - Lohara
District - Osmanabad
.......
Mr. V. D. Salunke, Advocate for the petitioner
Mr. S. K. Tambe, AGP for respondent-State
Mr. S. K. Kadam, Advocate for respondent No.2
Mr. G. J. Kore, Advocate for respondent No.4
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 26th JULY, 2016
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
consent of learned advocates for the appearing parties.
2. Mr. Salunke, learned advocate for the petitioner contends
that in the face of indisputable position emerging that
respondent No.4 is a defaulter of Shetkari Sahakari Sakhar
Karkhana Limited, Killari, Taluka - Ausa, District - Latur of an
amount of Rs.3798.15, the impugned order passed at appellate
stage by Assistant Registrar, Co-operative Societies, Lohara is
unsustainable.
3. Mr. Salunke submits that elections to the managing
committee of Vividh Karyekari Seva Sahakari Sanstha Ltd.,
Salegaon, Taluka - Lohara, District - Osmanabad are in
process in which respondent No. 4 has put in his candidature. On
7th July, 2016 he had received a communication from aforesaid
sugar factory referring to that an amount of Rs. 3798.15 is due
from respondent No. 4 to the sugar factory towards harvesting
and transportation of sugarcane. The same had been purportedly
considered by the returning officer and had rejected the
nomination of respondent No. 4. However, in appeal therefrom at
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the instance of respondent No. 4, the appellate authority-
Assistant Registrar, Co-operative Societies has got swayed into
an issue which was not germane from the consideration of point
that had arisen since it glaringly emerges that respondent No. 4
is a defaulter and as such, not eligible to contest the election. He
submits that the appellate authority has unnecessarily got
entangled into consideration that there does not appear to be
any demand as required under section 73CA (1) (c) (ii) of the
Maharashtra
Co-operative Societies Act, overlooking other
requirements under the very same clause that in case services
are availed, its dues are not paid within thirty days, in such a
case it ought to have been considered that respondent No. 4 is a
defaulter. He further submits that over and above this, the fact
of default appears to be an admitted one, for on the very next
day, respondent No. 4 had paid the amount to the sugar factory.
He submits that over and above this, nothing further was
required to show that respondent No. 4 is a defaulter. Learned
advocate further refers to a division bench judgment of this
court, which according to him shows, a subsequent payment
merely removes the dues and not the disqualification, since
disqualification has been incurred in law. According to him, it
was a grave error committed by the appellate authority in
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allowing appeal. He further purports to refer to an order passed
by this court on 10th June, 2016 in writ petition No.5834 of 2016
wherein this court had taken into account division bench order in
writ petition N0.7670 of 2004 in which respondent No.3 had
been considered to have three children, third having born after
the cut off date and this court had considered that in such a
case, respondent No.3 could not be eligible to contest election,
and as such, had passed an interim order.
4.
In response to aforesaid submissions, learned advocate
Mr. Kadam for respondent No.2, returning officer, states that the
order at appellate stage is the final order as far as election
commission is concerned and will have to abide by the same. He
submits that veracity or otherwise of the claims would be a
question of fact and as such, no meddlesome approach be taken
up in the present writ petition. He further refers to that elections
have reached almost the final stage, wherein save voting all
other stages are over and as such, requests not to intervene in
the election process, which has reached the stage of polling.
5. Mr. G. J. Kore, learned advocate for respondent No.4
submits that the appellate authority has considered the matter
appropriately. He submits that reliance being placed on the
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communication procured at the instance of the petitioner is
highly misplaced, for, the communication has been issued at
eleventh hour, without letting any opportunity to respondent No.
4. He submits that respondent No. 4 is not a defaulter of the
society, elections of which are being contested. He further draws
attention to the averments as are appearing in the affidavit in
reply stating that respondent No.4 is not a defaulter, the
amount, which is claimed to be due by the sugar factory under
the communication cannot be relied on. He submits that such an
amount is to be recovered from payment which is due to
respondent No. 4 from the sugar factory and as such,
respondent No. 4 cannot be dubbed to be a defaulter. This
contention is being advanced without prejudice to his basic
contention that he is not a defaulter. He further submits that no
particulars of the amount due have been given, period for which
the default has been made has also not been mentioned. There
is no demand notice as is required under the provisions. There is
no reference as to who is responsible for payment or otherwise
to recover the amount allegedly due from him. He purports to
rely on a decision of this court in the case of "Ravindra Bhaurao
Patil Shishode V/s State of Maharashtra and Others" reported in 2010 (5)
Mh.L.J. 410, which according to him, clearly clarifies law that a
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default should be in respect of the society of which elections are
being contested and default of another society may not be a
relevant consideration. He further purports to rely on two other
judgments one in the case of "Murlidhar Bhaulal Malu V/s Sudhakar
Honaji Patil and Another" reported in 1987 Mh.L.J. 944 and the other in
the case of "Narayan Gujabrao Bhoyar V/s Yeotmal Zilla parishad
Karmachari Sahakari Pat Sanstha Maryadit Yeotmal and Another" reported in
2009 (6) Mh.L.J. 500.
6.
Taking into account aforesaid submissions, the position as
on the date obtaining is, the petitioner purports to rely on a
communication from a sugar factory about respondent No. 4
being a defaulter, whereas respondent No. 4 disputes veracity of
the communication, making reference to certain other aspects
involved in the matter in accordance with law as well as the
facts. Having regard to that the petition ultimately gives rise to
disputed aspects, it would not be appropriate for high court,
which generally is slow to interfere with the matters wherein
nominations have been accepted and in this case, particularly
having regard to that the elections have reached almost in the
last lap of the programme.
7. As such, writ petition is not being entertained and is
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dismissed, leaving it open to the petitioner to take up
appropriate recourse to the remedies as may be available in law,
including an election petition. Rule stands discharged.
[SUNIL P. DESHMUKH, J.]
drp/wp7783-16
