Bombay High Court
Sandipan Asaram Bhumare vs The State Of Maharashtra And ... on 15 June, 2016
Bench: S.P. Deshmukh
1 WP-5950.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 5950 OF 2016
Sandipan s/o Asaram Bhumare
Age 53 years, occup. Agriculture,
R/o Pachod, Tal. Paithan,
District Aurangabad .. Petitioner
versus
01. The State of Maharashtra,
through its Secretary,
Co-operation Deartment,
Mantralaya, Mumbai
02. The State Co-operative Election
Authority
03. The Returning Officer for Elections
to Shri Sant Eknath Sahakari Sakhar
Karkhana Ltd., Paithan and the
Regional Joint Director (Textile),
Aurangabad
04. Shri Sant Eknath Sahakari Sakhar
Karkhana Ltd., Paithan, Taluka :
Paithan, Dist. Aurangabad,
through its Managing Director
05. Vikram s/o Kisanrao Ghayal,
Age major, occup. Agril.,
R/o Harshi (Bk), Tal. Paithan,
District Aurangabad .. Respondents
-------
Mr. Siddheshwar S. Thombre, Advocate for petitioner
Mr. A. P. Basarkar, Asstt. Govt, Pleader for respondent no.1
Mr. S. K. Kadam, Advocate for respondents no. 2 and 3
Respondent no. 4 is served
Mr. R.N. Dhorde, senior advocate, i/b Mr. Yuvraj V. Kakade,
Advocate for respondent no. 5
::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 05:30:30 :::
2 WP-5950.16.doc
CORAM : SUNIL P. DESHMUKH, J.
DATE : 15th June, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard learned counsel
for parties finally, by consent.
2. Petitioner takes exception to order dated 06-06-2016 passed
by Respondent no. 3 - returning officer in the election to managing
committee of respondent no. 4 - Shri Sant Eknath Sahakari Sakhar
Karkhana Limited of which election programme is underway. By
said order, respondent no. 3 overruled objection taken by petitioner
to nomination of respondent no. 5 on the ground that respondent
no. 5 had failed to supply sugarcane thrice in the preceding five
years to the election to said karkhana as he had failed to supply
sugarcane in the year 2013-14.
3. Mr. Thombre, learned counsel appearing on behalf of
petitioner submits that it emerges on record that there is no
compliance of requirement of supplying sugarcane thrice in five
years preceding the election pursuant to bye-law no. 28(2) of
respondent no. 4 sugar factory. He, therefore, submits that
respondent no. 5 has incurred disqualification which is writ large
and in spite of that, election officer has erroneously rejected
3 WP-5950.16.doc
objection by petitioner which he, in fact, ought to have allowed and
ought to have rejected nomination of respondent no. 5.
4. Learned counsel for petitioner has taken me through
elaborate order passed by returning officer on 06-06-2016 which is
annexed as Exhibit-I at pages 50 to 52 of writ petition paperbook
and emphasized observations under clauses 1 and 2 of the same at
page 52 which show that respondent no. 5 had supplied sugarcane
during the year 2014-15 and 2015-16 and further shows that
during the year 2013-14 supply had not been made to respondent
no. 4 but to some other sugar factories. As such, according to
learned counsel, it is evident that respondent no. 5 had failed to
supply sugarcane to respondent no. 4 thrice and thus his
nomination ought to have been rejected.
5. He further goes on to contend that even the record regarding
supply of sugarcane to Kedareshwar Sahakari Sakhar Karkhana is
bogus and for said purpose, he purports to rely on a document
annexed as Exhibit-K at page 57 of the writ petition which,
according to him, is an extract of annual report of said sugar
factory for the year 2013-14 which clearly shows that even that
sugar factory was not functioning during the period 2013-14 and as
such, reliance by returning officer on the document regarding
supply of sugarcane to said factory had been patently improper. In
the face of such situation, according to him, objection ought not to
4 WP-5950.16.doc
have been overruled and, in fact, nomination of respondent no. 5
ought to have been rejected.
6. Learned counsel for the petitioner, during the course of his
submissions, places reliance on a decision of the honourable single
judge of this court in the case of Ashok Pundlikrao Patil vs
Shashikant Sidram Patil, reported in 2011 (4) Bom. C. R. 70,
particularly paragraph no. 8 and also refers to paragraph no. 11 of
the same.
7.
Perusal of aforesaid judgment shows that it was totally on
different background of facts peculiar to that case. While factory
was functioning, sugarcane was not supplied by petitioner therein.
Over and above, the case was relating to old bye-laws then existing
which prescribed supply of sugarcane for three consecutive years
preceding the election. Reliance and emphasis on said case by
learned counsel for petitioner may not lend much assistance in the
present case.
8. Here, it appears that the election officer in the enquiry of
summary nature has taken into account that during the relevant
period of three years while petitioner apparently appears to be in a
position to supply sugarcane, the karkhana had not been
functioning and said factor had been taken into account while
deciding the objection.
5 WP-5950.16.doc
9. Mr. Thombre further goes on to submit that apart from
default in supply of sugarcane for three years to the karkhana,
respondent no. 5 is also ineligible for the reason, he has incurred
disqualification having regard to section 73CA (1A) of the
Maharashtra Co-operative Societies Act, 1960 because he happens
to be director of a concern which is involved in the same business
as that of Sant Eknath Sahakari Sakhar Karkhana - respondent no.
4 herein.
10. Another leg of submissions of Mr. Thombre with regard to
revenue record is that in the area of operation of respondent no. 4-
karkhana, respondent no. 5 had not cultivated sugarcane thrice
which, according to him, indicates that respondent no. 5 had not
during this period grown sugarcane in his land.
11. Learned senior advocate Mr. Dhorde appearing on behalf of
respondent no. 5 submits that petition primarily raises disputed
questions of facts and that learned counsel for petitioner purports
to take up the grounds which were not taken before the returning
officer. He, therefore, submits that new grounds cannot be taken
now before this court and those are forbidden. Scope of writ
petition cannot be widened beyond the precincts of the order
passed by the election officer. He submits that even otherwise the
objections by petitioner are vacuous and can be repelled and
6 WP-5950.16.doc
dispelled convincingly, if an opportunity is given and afforded to
respondent no. 5. Learned senior advocate submits that general
position of law is that the courts ordinarily are loath to interfere
with order of the returning officer accepting nominations. He further
supports his submissions, by submitting that respondent no. 4 does
not possess any crushing licence.
12. Mr. Kadam, learned advocate appearing for respondents no. 2
and 3-election authorities contends that major stages in the
election are already over; the order passed by the returning officer
is based on the material that had been made available to him
during the course of the scrutiny of nominations. The karkhana
had not been functioning during the year 2013-14. Mr. Kadam
submits that for default by karkhana, respondent no. 5 could not be
held responsible since the documents depict that he was in a
position to supply sugarcane and to comply with requirement under
bye-law 28(2) and as such he defends the order passed by
returning officer. As such, no fault can be found with the impugned
order passed by the election officer.
13. Taking into account aforesaid submissions, it appears that
although it is being contended that respondent no. 5 had not
supplied sugarcane to respondent no. 4 thrice in the five years
preceding the election, the material placed before the election
officer having regard to the facts and circumstances of the case, to
7 WP-5950.16.doc
a fair degree, show that respondent no. 5 had supplied and could
have supplied sugarcane as required under bye-law 28 (2) for a
period of three years out of five years preceding the election.
Respondent no. 5 did not supply sugarcane to respondent no. 4
during the period 2013-14 appears to be for the reason that
respondent no. 4 itself had not been functioning during said period.
14. Paragraph no. 11 of the judgment in the case of Ashok Patil
supra as is sought to be relied on by petitioner makes a reference
to that member is not expected to comply with the condition which
is not possible to be complied with. In the circumstances, it
appears that the order passed by the election officer in present
matter is not liable to be faulted with.
15. As far as other two grounds which are sought to be taken,
namely, sugarcane had not been grown by respondent no. 5 in his
land or for that matter he is a director of a concern or organization
which is involved in the same business like that of respondent no.4-
karkhana, the petitioner incurs disqualification under section 73-CA
are concerned, those are the grounds which do not appear to have
been taken before the returning officer. The albeit ground no. 3
pertains to non-cultivation of sugarcane, apart from said ground
being denied, no material is placed with regard to petitioner being
engaged in parallel business. These questions at this stage appear
to give rise to disputed questions and as such may not be required
8 WP-5950.16.doc
to be considered having regard to the stage at which election has
progressed.
16. Writ petition, as such, is dismissed. Rule stands discharged.
17. It is, however, open for the petitioner to take up the
grounds, if he chooses to challenge election of respondent no. 5, in
appropriate proceedings before appropriate forum. It is further
made clear that the observations made hereinabove are for the
purpose of decision in writ petition and would have no efficacy any
further. Proceedings, if any, taking exception to election of
respondent no. 5 are filed, the same shall be decided uninfluenced
by this order.
SUNIL P. DESHMUKH,
JUDGE
pnd
