Vijay Narsinha Deshmukh vs The State Of Maharashtra And ...
2016 Latest Caselaw 5956 Bom

                                                                    942_WP1030216.odt


             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                            BENCH AT AURANGABAD

                            WRIT PETITION NO. 10302 OF 2016




                                                     
    Vijay Narsinha Deshmukh
    Age: 55 years, Occu.: Service presently
    working as Development Officer,




                                                    
    Life Insurance Corporation, Jalna,
    R/o 2134, Income Tax Colony,
    Jalna, Tq. & Dist. Jalna.                               ..PETITIONER




                                               
                   VERSUS

    1.  State of Maharashtra
         Through its Secretary
                                    
         Co-operation and Textile Department,
                                   
         Mantralaya, Mumbai-32.

    2.  The District Deputy Registrar
         Co-operative Societies, Jalna.
         


    3.  The Returning Officer
      



         (Shri V.P. Rodge)
         for Devgiri Nagari Sahakari Pat Sanstha
         Maryadit, Jalna and
         ARCS Jalna, having its office at ARCS Office,





         Bhuvikas Bank Building, Survey No. 488,
         Jalna, Tq. & Dist. Jalna.
      
    4.  Devgiri Nagari Sahakari Pat Sanstha Maryadit,
         Jalna, 7, Shanta Govind Apartment,





         Gandhi Chaman, Old Jalna,
         Tq. & Dist. Jalna
         Through its Secretary.

    5.  Sudhakar Vitthalrao Kulkarni
         Age: 58 years, Occu.: Retired,
         R/o Roopnagar, Ambad 'T' Point,
         Jalna, Tq. & Dist. Jalna.                          ..RESPONDENTS

                                          1   /  6




           ::: Uploaded on - 18/10/2016              ::: Downloaded on - 19/10/2016 00:24:35 :::
                                                                                 942_WP1030216.odt


                                             ....
    Mr.   Deelip   Bankar   Patil,   Advocate   h/f   Mr.   S.M.   Gunjal,   Advocate   for 




                                                                                         
    petitioner.
    Mr. S.R. Yadav, A.G.P. for Respondent Nos.1 to 3.
    Mr. S.S. Paturkar, Advocate for Respondent No.4.




                                                                 
    Mr. J.R. Pawar, Advocate for Respondent No.5.
                                             ....

                                             CORAM :  T.V. NALAWADE, J.

DATED : 13th OCTOBER, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard both sides by

consent for final disposal.

2. The petition is filed by one member of Respondent No.4 - Co-

operative Credit Society to challenge the decision given by the District Co-

operative Election Officer, Jalna in Appeal No. 1 of 2016.

3. Respondent No.5 wants to contest the election of Respondent

No.4 - Society. The nomination forms were to be accepted between 12 th

September, 2016 and 16th September, 2016. The nomination form was

filed by Respondent No.5 on 16 th September, 2016 and he had made

declaration that he was not disqualified due to any provision of the

Maharashtra Co-operative Societies Act, 1960. On 19 th September, 2016,

the date fixed for taking of objection, objection was field by present

2 / 6

942_WP1030216.odt

petitioner to nomination of Respondent No.5. It was contended that

Respondent No.5 was a member of M.S.R.T.C. Employees Co-operative

Credit Society and he was defaulter in that society. He produced

certificate dated 16th September, 2016 issued by this society which was to

the effect that Respondent No.5 was defaulter and due to default, amount

of Rs.69,374/- was due from him as arrears. The particulars like principal

amount and interest were given in the certificate. Respondent No.5 then

applied to the Returning Officer and requested for time as he wanted to

produce certificate that he had cleared the arrears. In application dated

19th September, 2016, Respondent No.5 specifically admitted that he had

committed default but he wanted to clear the dues prior to 11.00 a.m. of

20th September, 2016. It appears that on the same day, he went to the

society where he had become defaulter and he cleared the dues. He

produced the certificate on 19th September, 2016 itself before the

Returning Officer. After giving hearing to both the sides, the Returning

Officer gave decision on 20th September, 2016 and rejected the

nomination of Respondent No.5. It was held that in view of the provision

of Section 73FF (1)(i)(b), the disqualification was incurred and so the

nomination cannot be accepted. The appellate authority - District Co-

operative Election Officer allowed the appeal by holding that the amount

was paid though subsequently and on the date of scrutiny i.e. 19 th

3 / 6

942_WP1030216.odt

September, 2016, Respondent No.5 was not defaulter and so his

nomination needs to be accepted.

4. On the aforesaid point, the learned Counsel for present

petitioner placed reliance on some reported cases. In the case 2003(2)

Mh.L.J. 485 ( Vijaysingh Krishnarao Parbat Vs. Returning Officer,

Janata Sahakari Bank Ltd. and others ) decided at Principal Seat of this

Court, there was occasion to consider similar situation and this Court held

that a person is eligible to contest the election if he discloses himself to be

not a defaulter at least on or before last date of filing of nomination

papers. Thus it was held that on or before last date of filing of

nomination papers the arrears need to be cleared and candidate must

show that he was no more defaulter. Similar observations are made by

this Court in the cases reported as 2011(3) Mh.L.J. 833 ( Manchak

Shahaji Pawar Vs. State of Maharashtra and Others ) and 2005(4) All

M.R. 318 ( Aurangabad Bench )( Navnath Motiram Shirale Vs. The

Returning Officer (Assistant Registrar Co-op. Societies Patoda, Dist.

Beed) and Others ). In other decision given by this Court at this Bench

on 24th April, 2015 in Writ Petition In 4341 of 2015 ( Gangadhar

Govindrao Rathod Vs. State of Maharashtra and Others ) similar

observations are made.

4 / 6

942_WP1030216.odt

5. On the other hand, the learned Counsel for Respondent No.5

placed reliance on observations made by this Court in Case reported as

1995(1) Mh.L.J. 208 ( Ramesh Rajaram Patil Vs. Additional

Commissioner, Aurangabad Division and Others ). In that case this

Court had held that if the amount was paid before recording of decision

by the Returning Officer and that may be after the last date given to file

nomination paper, he cannot be treated as defaulter and his nomination

needs to be accepted. In other matter reported as 1987 Mh.L.J. 944

( Maurlidhar Bhaulal Malu Vs. Sudhakar Honaji Patil and Another ) it is

held that the default needs to be established. The said case was on the

ground mentioned in Section 73FF (1)(c), thus ground was different and

there was necessity to show that the candidate was defaulter.

6. In the present matter, it was simple loan transaction and

admittedly Respondent No.5 was defaulter. The other case of Ramesh

Raharan Patil (supra) on which reliance was placed by Respondent No.5

was considered by this Court in case of Vijaysing cited supra. This Court

holds that the ratio laid down in the case of Vijaysing Krishnarao Parbat

(supra), needs to be accepted in view of the wording of provision of

Section 73FF (1)(i) of the Act. Thus the appellate authority has

committed serious mistake in allowing the appeal and in holding that the

5 / 6

942_WP1030216.odt

petitioner is eligible to contest the election to the Managing Committee of

co-operative society. The decision given in appeal cannot sustain in law.

In that result, following order:

Petition is allowed. The order made by appellate authority -

District Co-operative Election Officer in Appeal No. 1 of 2016 filed under

Section 152-A of the Maharashtra Co-operative Societies Act is hereby set

aside and order made by the Returning Officer is restored. Nomination

stands rejected. Parties to act on authenticate copy of this order. Rule

made absolute in aforesaid terms.

( T.V. NALAWADE, J. ) SSD

6 / 6