Dattatraya Pandharinath Chamle vs The State Of Maharashtra And ...
2017 Latest Caselaw 4126 Bom

   (Judgment)                        (1)                       W.P. No. 08127 of 2017




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
          AURANGABAD BENCH, AT AURANGABAD.

                        Writ Petition No. 08127 of 2017

                                                       District : Latur


Dattatraya s/o. Pandharinath Chamle,
Age : 61 years,
Occupation : Agriculture,
R/o. Konali, Taluka Deoni,
District Latur.                                   .. Petitioner.

                versus

1. The State of Maharashtra.

2. The Asst. Registrar of
   Co-operative Societies,
   Deoni, Taluka Deoni,
   District Latur.

3. The Returning Officer,
   Vividh Karyakari Seva Sahakari
   Sanstha, Konali,
   Taluka Deoni,
   District Latur.

4. Maruti s/o. Laxman Chamle,
   Age : 60 years,
   Occupation : Agriculture,
   R/o. Konali, Taluka Deoni,
   District Latur.                                .. Respondents.

                                    ...........

      Mr. V.D. Salunke, Advocate, holding for
      Mr. B.B. Yenge, Advocate, for the petitioner.

      Mr. S.P. Tiwari, Asst. Government Pleader, for
      respondents no.01, 02 and 03.

      Mr. N.V. Gaware, Advocate, holding for
      Mr. S.N. Patil, Advocate, for respondent no.04.

                                    ...........




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    (Judgment)                             (2)                W.P. No. 08127 of 2017




                                       CORAM : SUNIL P. DESHMUKH, J.

DATE : 06TH JULY 2017

ORAL JUDGMENT :

01. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally by consent.

02. Petitioner is a contesting candidate for a seat reserved

for Other Backward Class (OBC) category in the ongoing elections of

Vividh Karyakari Seva Sahakari Society, Konali, Taluka Devni, District

Latur. Election programme as appearing at Exhibit "A" shows that

various dates were scheduled for specific purposes. Relevant for the

matter in issue appear to be distribution of nomination forms and its

acceptance was scheduled during the period from 07th June, 2017 to

13th June, 2017. List of received nominations was to be published

during said period. 14th June, 2017 was the date scheduled for

scrutiny of nominations and 15th June, 2017 was for declaration of

validly nominated candidates. Period between 15th June, 2017 to

29th June, 2017 had been for withdrawal of nominations. 30th June,

2017 was the date scheduled for distributing election symbols and

01st July, 2017 was scheduled for publication of the list of contesting

candidates along with symbols and 09th July, 2017 is the date

scheduled for voting.

(Judgment) (3) W.P. No. 08127 of 2017

03. The petitioner contends that respondent no.04, namely,

Maroti Laxman Chamle had purportedly submitted nomination form

for contesting said elections as an OBC candidate for the seat

reserved for said category. Nomination form had been submitted by

respondent no.04 on 13th June, 2017, claiming and declaring to be

belonging to OBC category along with further declaration about true

copy of the certificate depicting OBC category having been annexed.

04. Upon scrutiny, a brief endorsement about reasons for

rejection of nomination of respondent no.04 has been recorded

referring to failure to submit certificate about him belonging to OBC

category. Matter appears to have been taken in appeal by

respondent no.04 around 15th June, 2017 and an order came to be

passed thereon on 17th June, 2017 observing that on 17th June,

2017 while hearing had been scheduled, certificate and true copy of

requisite caste certificate has been produced by respondent no.04

and in view of the same his nomination has been accepted setting

aside decision of the Returning Officer rejecting nomination of

respondent no.04.

05. Thus, the petitioner is before this court challenging order

passed by appellate authority dated 17th June, 2017 questioning

propriety, legality as well as jurisdiction of appellate authority. It is

submitted that undisputedly till the nominations had been finalized,

(Judgment) (4) W.P. No. 08127 of 2017

no certificate of caste by respondent no.04 had been made available

before the Returning Officer. Despite time having been allowed for

producing requisite certificate, respondent no.04 had failed to

produce the certificate within the time extended. The Returning

Officer, as such, has rejected nomination of respondent no.04. Order

passed by the Returning Officer is pursuant to the provosions of law,

particularly Rule 21, Sub-Rule 03 of the Maharashtra Co-operative

Societies (Election to Committee) Rules, 2014 and its proviso,

whereunder it is obligatory for a candidate to produce caste

certificate along with nomination form. Non-compliance of the

requirement under Rule 21 entails rejection and as such, the

Returning Officer has rightly rejected nomination of respondent

no.04.

06. Mr. Salunke, learned Counsel appearing for the petitioner,

submits that intriguingly the matter was carried in appeal without

making validly nominated candidates party to the appeal and

resultantly an order came to be passed without petitioner being

heard, depriving him of a legitimate and lawful opportunity as would

emerge from various decisions of this Court. He submits that the

appellate authority has obviously travelled beyond its powers,

authority and jurisdiction and has allowed on the day of hearing,

production of caste certificate by respondent no.04. He submits that

in absolute disregard to the stipulation and rules and rather in

(Judgment) (5) W.P. No. 08127 of 2017

ignorance thereof, has passed the order only for the reason that a

caste certificate has been produced on 17th June 2017. It has not

been examined as to whether the same would be legal, proper and

valid, whether same would be in accordance with rules and law.

Without examining as to whether in appeal, validly nominated

candidates have been impleaded, the same has been decided.

Impugned order is wholly misconceived in fact and law. He submits

that the area of examination for an appellate authority is correctness

or otherwise of order passed by the Returning Officer and not beyond

that, pointing out that there is not even a whisper by appellate

authority in respect of the same. He submits that no sooner the

impugned order is passed, than he had moved the High Court. This

court had issued notice. Accordingly, respondent no.04 has been

duly served. Learned Counsel submits that appellate order is a

patently illegal crossing limits of jurisdiction and even otherwise it is

unsustainable on the grounds referred to herein before.

07. Mr. Salunke, during the course of his submissions has

relied on a judgment of Supreme Court in the case of S. Sundaram

Pillai & others Vs. R. Pattabiraman & others [AIR 1985 SC 582] ,

pointing out paragraphs no.30, 37 and 89 thereof, submitting that

Judges should avoid interpreting statute in the light of their own

views and they may adopt a purposive interpretation. He submits

that paragraph 37 deals with the gist as to what is the function of

(Judgment) (6) W.P. No. 08127 of 2017

proviso which generally is intended to limit the enacted provision so

as to except something which would have otherwise been within it or

in some measure to modify enacting clause. In the circumstances,

he submits, although it may be argued that the provisions allow

contest by reserved category candidates, rejection of nomination for

non-submission of certificate pursuant to the rules is not justifiable,

would not a proper argument as the elections are governed by

statutory rules. He submits, declaration under the nomination will

have to be supported by a document in the form of certificate in

order to have validity to the nomination. A bare claim without being

supported by the material, according to the rules, is liable to be

rejected under the Maharashtra Co-operative Societies (Election to

Committee) Rules, 2014, which precisely the Returning Officer has

done taking into account the requirement under the Rules. Thus, the

action and decision of rejection can hardly be faulted with and

cannot be dubbed as improper or illegal. The nomination form of

respondent no.04 had been deficient, lacking the certificate on the

crucial date and that has been rightly rejected.

08. Mr. Salunke further submits that appellate authority has

grossly exceeded powers, authority and jurisdiction. He further

submits that appellate authority has committed error in absolutely

disregarding the Maharashtra Co-operative Societies (Election to

Committee) Rules, 2014, and particularly rule 21 and relevant

(Judgment) (7) W.P. No. 08127 of 2017

proviso. The appellate authority has expanded scope of powers

which is not allowed under the statutory provisions. The Returning

Officer has rejected nomination form of respondent no.04 in

accordance with rules according to the election programme which

appellate authority has completely overlooked.

09. Mr. Salunke has further relied on a judgment in the case

of Abdul Khalekh Mohd. Musa Vs. Ramkrishna Maroti Bangar & others

[1985(2) Bom.C.R. 250] and has referred to paragraphs no.07 and 08

therein explaining and discussing the scope of scrutiny of nomination

papers. He submits that in present case, even during extended

period, respondent no.04 had failed to furnish the certificate and this

imperative aspect has been overlooked by appellate authority. He

submits, for absence of validly nominated candidates, the appeal

even otherwise has been defective.

10. He refers to yet another judgment of this Court in the

case of Sow. Gangabai w/o. Nikantrao Jadhav Vs. The State of

Maharashtra & others [2000 C.T.J. 7] to buttress his submission that

in deserving cases interference is necessary and is a must. The

court should not deter from doing so even before the last date for

filing nomination papers. He has further relied on a judgment of this

court in the case of Pandurang Hindurao Patil Vs. the State of

(Judgment) (8) W.P. No. 08127 of 2017

Maharashtra & others [1984 C.T.J. 125] to reinforce his submission

that this court shall not be baulked by the general assumption that

the courts would not cause interference in election process.

11. On the other hand, Mr. Gaware, learned Counsel

appearing for respondent no.04, contends that it is under the

constitutional policy, seats are required to be reserved for OBC

category in the management of co-operative societies. Pursuant to

the policy, certain amendments have been carried out to the

Maharashtra Co-operative Societies Act, 1960, around 2013. He

contends that co-operative societies have been added under Article

19 by amendment, as such formation of co-operative societies is a

fundamental right. He further submits that law on interference in

the process of election is clear and that there have been several

decisions referring to the same. He submits that powers under

Articles 226 and 227 are not required to be invoked in undeserving

cases especially in the matters of elections and elections in present

matter have reached almost final stage wherein symbols have

already been allotted including to respondent no.04 and except

voting, all other stages are now over. The petitioner has alternate

remedy available for prosecution of his cause even after the

elections.

12. Mr. Gaware goes onto submit that it is absolutely not a

(Judgment) (9) W.P. No. 08127 of 2017

case that respondent no.04 does not belong to OBC category or for

that matter, he does not possess a certificate in respect of the same.

Respondent no.04 has during the course of election process, received

a certificate and has accordingly submitted the same before

appellate authority. The requirement of submission of caste

certificate is not under a substantive provision. In the

circumstances, according to him, while a substantive provision does

not require submission of a certificate, such a requirement, as

contended, under the rules would not take away a valid right to

contest on submission of caste certificate. He submits that

requirement under rule for submission of caste certificate can hardly

be said to be mandatory and in quite few decisions, in similar

situation, it has been held by the court that, at the most, it can be

directory.

13. Mr. Gaware relies on a judgment of Division Bench of this

Court in the case of Dadasaheb Arjun Gulve Vs. State of Maharashtra &

others [2008(2) Bom.C.R. 712], putting emphasis on paragraphs no.05

and 10 therein. Said case appears to be dealing with the provisions

of the Maharashtra Municipal Councils, Nagar Panchayats and

Industrial Townships Act, 1965, and particularly Section 5-B,

whereunder it appears a disqualification had been incurred for want

of submission of caste validity certificate within the prescribed

period. While dealing with the case, Division Bench has observed

(Judgment) (10) W.P. No. 08127 of 2017

that object of having persons from reserved categories elected may

be defeated even in genuine cases where persons are belonging to

backward classes, where they had received caste certificate and had

not been able to obtain caste validity certificate from the Scrutiny

Committee before last date of filing of nomination paper. Proviso to

Section 5B of the Mumbai Municipal Corporation Act, 1888, was

added in order to enable the persons belonging to backward classes

to contest elections by producing at the time of nomination paper

caste certificate along with a proof of having applied for verification

of caste certificate and filing an undertaking for production of caste

validity certificate within the prescribed period. The Court was

dealing with a case wherein the candidate had incurred

disqualification for failure to submit caste validity certificate within

the prescribed period for no fault of his, the procurement of which

hardly had been in his control.

14. Mr. Gaware further submits that even otherwise the high

court is supposed to go very slow in the matters wherein

nominations have been accepted and for said purpose, he purports

to rely on a judgment of Honourable learned single judge of this

Court in the case of Geeta Shirish Chaudhari Vs. State of Maharashtra

& others [2006(6) Bom.C.R. 303]. He submits, it has been considered

in that while effective machinery has been provided under the Act of

1960 to deal with election disputes by a competent forum, it is not

(Judgment) (11) W.P. No. 08127 of 2017

that the petitioner would be without remedy after the election results

are declared and in the circumstances, it is not appropriate for this

court to entertain a writ petition. It appears that the court had

declined to interfere with under writ jurisdiction looking at the

context and nature of controversy involved in that matter and

disputed questions having been involved.

15. Mr. Gaware has also referred to a judgment of this Court

delivered in Writ Petition No. 7783 of 2016 [ Govind Tukaram Birajdar

Vs. The State of Maharashtra & 03 others ] dated 26th July 2016, to

emphasize that the court had declined to interfere with election

process when elections had reached almost at the last stage.

16. He submits that looking at object underlying the

Constitution, respondent no.04 shall not be deprived of opportunity

of contesting election by accepting his nomination paper, as ordered

by appellate authority, for technical reasons like the one which has

been pressed into service by the petitioner.

17. He submits that even otherwise, the rule which is relied

on is not a substantive rule but only a proviso and mere use of word

'shall' will not be a determinative factor.

18. The proviso cannot take away object and purpose

(Judgment) (12) W.P. No. 08127 of 2017

underlying the main provision to let a candidate from reserved

category contest elections especially while in the present case, it is

not in dispute that the petitioner belongs to OBC category. He

submits that having regard to the object underlying main provision,

the proviso shall not be fashioned in a way which would undo the

object underlying main provision. In any case, according to him, a

proviso cannot be read to be mandatory and at the most, it can be

said to be directory.

19. Mr. Gaware goes onto submit that as a matter of fact,

having regard to the nature of elections and the constitutional policy

and the provisions of the Maharashtra Co-operative Societies Act,

1960, and the rules framed thereunder, it may be said that

submission of caste certificate along with the nomination form may

not be necessary and reference to that he belongs to reserved

category may be sufficient. In the present case, not only respondent

no.04 claims to be from reserved category but he has declared to be

so in the nomination form and as such, it was sufficient for his

candidature to be validated from the reserved category. This was

necessary to be considered by the Returning Officer and, as such,

had erred rejecting nomination form of respondent no.04.

20. Mr. Gaware has placed reliance on a judgment of

Supreme Court in the case of Bachahan Devi & another Vs. Nagar

(Judgment) (13) W.P. No. 08127 of 2017

Nigam, Gorakhpur & another [2008 DGLS(SC) 160 = 2008 AIR(SC)

1282] placing emphasis on paragraphs no.11, 12 and 13 thereof

which read as under :-

"11. The delicate question that remains to be examined is what is the position in law when both the expression "shall" and "may" are used in the same provision.

12. Mere use of word may or shall is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue.

13. Several statutes confer power on authorities and officers to be exercised by them at their discretion. The power is in permissive language, such as, it may be lawful, it may be permissible, it may be open to do, etc. In certain circumstances, however, such power is coupled with duty and must be exercised."

21. Mr. Gaware urges to consider that there is no dispute

about respondent no.04 belonging to OBC category. Respondent

no.04 had applied before the date of scrutiny of nomination,

(Judgment) (14) W.P. No. 08127 of 2017

however, could not secure the same before the scrutiny was over.

He, therefore, urges the court to dissuade itself from interfering with

in the matter where the elections have reached the stage of voting.

22. Looking at the subject matter in the case of Dadasaheb

Arjun Gulve (supra), it does not appear that there can be any

analogy as the present situation has a different context altogether.

In the present matter, effect of non-submission of caste certificate at

the time of filing nomination and its scrutiny would have to be seen.

Statutory rules prescribe submission of caste certificate along with

the nomination in order to see that a contesting candidate has

material to show to be belonging to reserved category.

23. In the given scenario, it clearly emerges that on the date

of scrutiny of nominations, nomination form of respondent no.04 had

been deficient of the required certificate pursuant to provisions of

rules, despite some latitude had been given by the Returning Officer

to produce the same. Consequently the nomination has been

rejected. While appeal had been preferred by respondent no.04, on

the day of hearing of the appeal, the certificate came to be

submitted before appellate authority. Such submission of course is

not in accordance with the requirements of the rules nor anything

has been brought to the fore on behalf of respondent no.04 that, the

defect and omission, in submission of nomination form pursuant to

(Judgment) (15) W.P. No. 08127 of 2017

the election programme is a defect or omission rectifiable at a later

point of time. Section 152A of the Maharashtra Co-operative

Societies Act provides for an appeal against rejection of nomination.

It does not appear that appellate authority has been invested with

powers to allow removal of deficiencies and/or cure defects at

appellate stage. In the appeal, correctness of the order by Returning

Officer was under scrutiny. The action of submission of caste

certificate before the appellate authority is an action beyond the

period stipulated under the election programme. Here, it appears

that the appellate authority has committed an error in going beyond

its powers, authority and jurisdiction by letting respondent no.04

submit certificate during the hearing of appeal. That apart, the

impugned order gives a miss to the election programme and relevant

rules, particularly rule 21(2) and its proviso. It is, therefore,

apparent that there is a gross error committed by the appellate

authority in allowing the appeal, going beyond the election

programme and without taking into account relevant rules.

24. Even otherwise, other circumstances would be necessary

to be taken into account. While a declaration has been made in

nomination form that a copy of certificate has been attached, yet

what emerges is that, he has submitted a note that he has applied

for a certificate. Further it emerges that even on the date of

scrutiny, requisite certificate could not be produced by respondent

(Judgment) (16) W.P. No. 08127 of 2017

no.04. Over and above this, the certificate which has been

purportedly produced before the appellate authority shows that the

same had been delivered to the petitioner only after submission of

the appeal and as such, even on the date of submission of appeal,

same had not been available nor there was any reference in the

memorandum of appeal to that the certificate being issued. The

appeal memo is alleged to be defective for not making validly

nominated candidates as parties to the appeal, according to the

submissions made on behalf of the petitioner relying on certain

judgments. It is not a situation that there are no other contesting

OBC category candidates. In the circumstances, although it is being

argued that the court should not intercept in the election process

where nominations have been accepted, yet in the present case, the

appellate authority has misconceived its power, authority and

jurisdiction and committed error in allowing appeal. As such, the

impugned order passed by the appellate authority deserves to be set

aside.

25. In the light of above, the Writ Petition is allowed in terms

of prayer clause "C". The order dated 17.06.2017, passed by the

Assistant Registrar of Co-operative Societies, Deoni, District Latur, in

Appeal No.01/2017, filed by respondent no.04 under Section 152A of

the Maharashtra Co-operative Societies Act, 1960, stands quashed

and set aside and election programme to proceed with accordingly.

(Judgment) (17) W.P. No. 08127 of 2017

26. Rule made absolute in the above terms. There shall be

no order as to costs.

( Sunil P. Deshmukh ) JUDGE

...........

puranik / WritPet8127.17