Bombay High Court

Shahaji Sahebrao Desai And Others vs The State Of Maharashtra And ... on 16 June, 2017

Bench: S.P. Deshmukh

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 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD



                     WRIT PETITION NO.7356 OF 2017

 1.       Pandit Naroji Buchale                              PETITIONERS
          Age - 58 years, Occ - Agriculture
          R/o Jawala (Bk) Post - Hayatnagar
          Taluka - Basmat, District - Hingoli

 2.       Bapurao s/o Ganpatrao Ghatol,
          Age - 62 years, Occ - Agriculture
          R/o Pimpalgaon Balapur,
          Post - Katneshwar, Taluka - Purna
          District - Parbhani

          VERSUS

 1.       The State of Maharashtra                         RESPONDENTS
          Through Secretary,
          Co-operation Department,
          Mantralaya, Mumbai-32

 2.       The State Co-operative Election Authority,
          Maharashtra State, Shivaji Nagar
          Pune

 3.       The District Co-operative Election Officer and
          Regional Joint Director (Sugar)
          Nanded

 4.       The Returning Officer,
          For Elections of Purna Sahakari Sakhar Karkhana Ltd.,
          Basmatnagar, Taluka - Basmat
          District - Hingoli
          Office of Sub Divisional Officer,
          Basmatnagar, District - Hingoli

 5.       The Purna Sahakari Sakhar Karkhana Ltd.,
          Basmatnagar, Taluka - Basmat
          District - Hingoli
          Through its Managing Director




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 6.       Bhagwan Gneshrao Dhas,
          Age - 37 years, Occ - Agriculture
          R/o Alapur Pandhari, Post - Asola
          Taluka and District - Parbhani

 7.       Shankarrao s/o Mahadji navghare
          Age - 42 years, Occ - Agriculture
          R/o Degon, Post - Purna
          Taluka - Purna, District - Parbhani

 8.       Prabhakar s/o Keshavrao Renge,
          Age - 48 years, Occ - Agriculture
          R/o Renkapur, Taluka - Basmat
          District - Hingoli

 9.       Prakash s/o Sheshrao Dhone,
          Age - 58 years, Occ - Agriculture
          R/o Near Barbadi Phata, Railway Crossing,
          Purna, Taluka - Purna
          District - Parbhani

 10.      Giridhar s/o Vyankatrao Shinde,
          Age - Major, Occ - Agriculture
          R/o Badbadi, Post - Pimpla (Lokhande)
          Taluka - Purna, District - Parbhani

 11.      Madhav s/o Vishwanath Ingole,
          Age - 36 years, Occ - Agriculture
          R/o Degaon, Post - Purna
          Taluka - Purna, District - Parbhani

 12.      Shamrao s/o Tukaram Bende,
          Age - 45 years, Occ - Agriculture
          R/o Palashi, Taluka - Basmat
          District - Hingoli

 13.      Shivaji s/o Shrirangrao Dhone,
          Age - 55 years, Occ - Agriculture
          R/o Pangra, Post - Pimpla (Lokhande)
          Taluka - Purna, District - Parbhani

 14.      Ganesh s/o Baliramji Bhosale,
          Age - 48 years, Occ - Agriculture




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          R/o Suhagan, Post - Pimpla (Lokhande)
          Taluka - Purna, District - Parbhani

 15.      Kalyan s/o Sakharamji Karhale,
          Age - 40 years, Occ - Agriculture
          R/o Bhategaon, Post - Purna
          Taluka - Prna, District - Parbhani

 16.      Tulshiram s/o Yashwantrao Bobade,
          Age - 40 years, Occ - Agriculture
          R/o Mategaon, Taluka - Purna
          District - Parbhani

 17.      Manohar s/o Kishanrao Bhalerao,
          Age - 57 years, Occ - Agriculture
          R/o Vadgaon Aherwadi, Taluka - Purna
          District - Parbhani

 18.      Sopan s/o Marotrao Bobade,
          Age - 46 years, Occ - Agriculture
          R/o Mategaon, Taluka - Purna
          District - Parbhani

 19.      Balasaheb s/o Devrao Navghare,
          Age - 40 years, Occ - Agriculture
          R/o Kanergaon, Post - Purna
          Taluka - Purna, District - Parbhani

                                  .......

Mr. V. D. Salunke h/f Mr. U. M. Maske, Advocate for petitioners Mr. S. N. Kendre, AGP for respondent - State Mr. S. K. Kadam, Advocate for respondents No.2 to 4 Mr. S. B. Ghatol Patil, Advocate for respondent No.5 Mr. Deelip Patil Bankar, Advocate for respondent No.6 .......

WITH

WRIT PETITION NO.7563 OF 2017

1. Shahaji s/o Sahebrao Desai PETITIONERS Age - 32 years, Occ - Agriculture R/o Chudawa, Taluka - Purna

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District - Parbhani

2. Pandit s/o Naroji Buchale, Age - 58 years, Occ - Agriculture R/o Jawala (Bk) Post-Hayatnagar, Taluka - Basmat, District - Hingoli

3. Bapurao s/o Ganpatrao Ghatol, Age - 62 years, Occ - Agriculture R/o Pimpalgaon, Balapur, Post - Katneshwar, Taluka - Purna District - Parbhani

VERSUS

1. The State of Maharashtra RESPONDENTS Through Secretary, Co-operation Department, Mantralaya, Mumbai-32

2. The State Co-operative Election Authority, Maharashtra State, Shivaji Nagar Pune

3. The District Co-operative Election Officer and Regional Joint Director (Sugar) Nanded

4. The Returning Officer, For Elections of Purna Sahakari Sakhar Karkhana Ltd., Basmatnagar, Taluka - Basmat District - Hingoli Office of Sub Divisional Officer, Basmatnagar, District - Hingoli

5. The Purna Sahakari Sakhar Karkhana Ltd., Basmatnagar, Taluka - Basmat District - Hingoli Through its Managing Director

6. Devidas s/o Kalyanrao Desai, Age - 38 years, Occ - Agriculture R/o Chudawa, Taluka - Purna

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District - Parbhani

7. Shankarrao s/o Mahadji navghare Age - 42 years, Occ - Agriculture R/o Degon, Post - Purna Taluka - Purna, District - Parbhani

8. Prabhakar s/o Keshavrao Renge, Age - 48 years, Occ - Agriculture R/o Renkapur, Taluka - Basmat District - Hingoli

9. Prakash s/o Sheshrao Dhone, Age - 58 years, Occ - Agriculture R/o Near Barbadi Phata, Railway Crossing, Purna, Taluka - Purna District - Parbhani

10. Giridhar s/o Vyankatrao Shinde, Age - Major, Occ - Agriculture R/o Badbadi, Post - Pimpla (Lokhande) Taluka - Purna, District - Parbhani

11. Madhav s/o Vishwanath Ingole, Age - 36 years, Occ - Agriculture R/o Degaon, Post - Purna Taluka - Purna, District - Parbhani

12. Shamrao s/o Tukaram Bende, Age - 45 years, Occ - Agriculture R/o Palashi, Taluka - Basmat District - Hingoli

13. Shivaji s/o Shrirangrao Dhone, Age - 55 years, Occ - Agriculture R/o Pangra, Post - Pimpla (Lokhande) Taluka - Purna, District - Parbhani

14. Ganesh s/o Baliramji Bhosale, Age - 48 years, Occ - Agriculture R/o Suhagan, Post - Pimpla (Lokhande) Taluka - Purna, District - Parbhani

15. Kalyan s/o Sakharamji Karhale,

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Age - 40 years, Occ - Agriculture R/o Bhategaon, Post - Purna Taluka - Prna, District - Parbhani

16. Tulshiram s/o Yashwantrao Bobade, Age - 40 years, Occ - Agriculture R/o Mategaon, Taluka - Purna District - Parbhani

17. Manohar s/o Kishanrao Bhalerao, Age - 57 years, Occ - Agriculture R/o Vadgaon Aherwadi, Taluka - Purna District - Parbhani

18. Sopan s/o Marotrao Bobade, Age - 46 years, Occ - Agriculture R/o Mategaon, Taluka - Purna District - Parbhani

19. Balasaheb s/o Devrao Navghare, Age - 40 years, Occ - Agriculture R/o Kanergaon, Post - Purna Taluka - Purna, District - Parbhani

.......

WITH

WRIT PETITION NO.7560 OF 2017

1. Shahaji s/o Sahebrao Desai PETITIONERS Age - 32 years, Occ - Agriculture R/o Chudawa, Taluka - Purna District - Parbhani

2. Pandit s/o Naroji Buchale, Age - 58 years, Occ - Agriculture

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R/o Jawala (Bk) Post-Hayatnagar, Taluka - Basmat, District - Hingoli

3. Bapurao s/o Ganpatrao Ghatol, Age - 62 years, Occ - Agriculture R/o Pimpalgaon, Balapur, Post - Katneshwar, Taluka - Purna District - Parbhani

VERSUS

1. The State of Maharashtra RESPONDENTS Through Secretary, Co-operation Department, Mantralaya, Mumbai-32

2. The State Co-operative Election Authority, Maharashtra State, Shivaji Nagar Pune

3. The District Co-operative Election Officer and Regional Joint Director (Sugar) Nanded

4. The Returning Officer, For Elections of Purna Sahakari Sakhar Karkhana Ltd., Basmatnagar, Taluka - Basmat District - Hingoli Office of Sub Divisional Officer, Basmatnagar, District - Hingoli

5. The Purna Sahakari Sakhar Karkhana Ltd., Basmatnagar, Taluka - Basmat District - Hingoli Through its Managing Director

6. Suresh s/o Digambar Desai, Age - 39 years, Occ - Agriculture R/o Chudawa, Taluka - Purna District - Parbhani

7. Shankarrao s/o Mahadji navghare Age - 42 years, Occ - Agriculture

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R/o Degon, Post - Purna Taluka - Purna, District - Parbhani

8. Prabhakar s/o Keshavrao Renge, Age - 48 years, Occ - Agriculture R/o Renkapur, Taluka - Basmat District - Hingoli

9. Prakash s/o Sheshrao Dhone, Age - 58 years, Occ - Agriculture R/o Near Barbadi Phata, Railway Crossing, Purna, Taluka - Purna District - Parbhani

10. Giridhar s/o Vyankatrao Shinde, Age - Major, Occ - Agriculture R/o Badbadi, Post - Pimpla (Lokhande) Taluka - Purna, District - Parbhani

11. Madhav s/o Vishwanath Ingole, Age - 36 years, Occ - Agriculture R/o Degaon, Post - Purna Taluka - Purna, District - Parbhani

12. Shamrao s/o Tukaram Bende, Age - 45 years, Occ - Agriculture R/o Palashi, Taluka - Basmat District - Hingoli

13. Shivaji s/o Shrirangrao Dhone, Age - 55 years, Occ - Agriculture R/o Pangra, Post - Pimpla (Lokhande) Taluka - Purna, District - Parbhani

14. Ganesh s/o Baliramji Bhosale, Age - 48 years, Occ - Agriculture R/o Suhagan, Post - Pimpla (Lokhande) Taluka - Purna, District - Parbhani

15. Kalyan s/o Sakharamji Karhale, Age - 40 years, Occ - Agriculture R/o Bhategaon, Post - Purna Taluka - Prna, District - Parbhani

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16. Tulshiram s/o Yashwantrao Bobade, Age - 40 years, Occ - Agriculture R/o Mategaon, Taluka - Purna District - Parbhani

17. Manohar s/o Kishanrao Bhalerao, Age - 57 years, Occ - Agriculture R/o Vadgaon Aherwadi, Taluka - Purna District - Parbhani

18. Sopan s/o Marotrao Bobade, Age - 46 years, Occ - Agriculture R/o Mategaon, Taluka - Purna District - Parbhani

19. Balasaheb s/o Devrao Navghare, Age - 40 years, Occ - Agriculture R/o Kanergaon, Post - Purna Taluka - Purna, District - Parbhani

.......

Mr. V. D. Salunke h/f Mr. U. M. Maske, Advocate for petitioners Mr. S. N. Kendre, AGP for respondent - State Mr. S. K. Kadam, Advocate for respondents No.2 to 4 Mr. S. B. Ghatol Patil, Advocate for respondent No.5 Mr. M. S. Kulkarni, Advocate for respondent No.6 .......

                                  WITH

                     WRIT PETITION NO.7562 OF 2017

 Bapurao s/o Nagoba Bele                                          PETITIONER
 Age - 60 years, Occ - Agriculture
 R/o Dhamangaon, Taluka - Basmat,
 District - Hingoli

          VERSUS

 1.       The State of Maharashtra                           RESPONDENTS
          Through Secretary,
          Co-operation Department,
          Mantralaya, Mumbai-32





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2. The State Co-operative Election Authority, Maharashtra State, Shivaji Nagar Pune

3. The District Co-operative Election Officer and Regional Joint Director (Sugar) Nanded

4. The Returning Officer, For Elections of Purna Sahakari Sakhar Karkhana Ltd., Basmatnagar, Taluka - Basmat District - Hingoli Office of Sub Divisional Officer, Basmatnagar, District - Hingoli

5. The Purna Sahakari Sakhar Karkhana Ltd., Basmatnagar, Taluka - Basmat District - Hingoli Through its Managing Director

6. Sunil s/o Baburao Kale, Age - 53 years, Occ - Agriculture R/o Shahar Peth, Basmat Taluka - Basmat, District - Hingoli

.......

Mr. V. D. Salunke h/f Mr. U. M. Maske, Advocate for petitioners Mr. S. N. Kendre, AGP for respondent - State Mr. S. K. Kadam, Advocate for respondents No.2 to 4 Mr. S. B. Ghatol Patil, Advocate for respondent No.5 Mr. M. S. Kulkarni, Advocate for respondent No.6 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 16th JUNE, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for appearing parties finally by consent.

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2. Writ petitions principally challenge eligibility of respective

respondents No. 6 in all petitions to contest ongoing elections to

membership of managing committee of respondent No. 5 Co-

operative society - a sugar factory from producer members

constituency.

3. It is contention of the petitioners that primarily

respondents No. 6 are ineligible to contest the elections for non

fulfillment of eligibility requirement under bye law No.28 (2)

reading, thus -

" 28- iksVfu;e dzekad 26 uqlkj fuoMwu |ko;kP;k lapkyd eaMGkph fuoM.kwd nj ikp o"kkZZuh

gksbZy- gh fuoM.kwd jkT; 'kklukP;k fof/keaMGkP;k dk;|kuqlkj fuoM.kwdhlkBh fu/kkZfjr dsysY;k

jkT; lgdkjh fuoM.kwd izkf/kdj.k ;k Lora= ;a=.ksekQZr ?ks.;kr ;sbZzy- egkjk"Vz lgdkjh laLFkk

vf/kfu;ekps vlysY;k rjrwnhl vf/ku jkgwu fo|eku lapkyd eaMGkpk dk;ZdkG laiw"Vkr ;s.;kiwohZ

ufou lapkyd eaMGkph fuoM.kwd gksowu uofuokZfpr lapkyd eaMG dk;ZHkkj fLodkjsy ;kph

tckcnkjh fo|eku lapkyd eaMG vkf.k dk;Zdkjh lapkyd ;kaph jkghy-

iksVfu;e 26 ¼v½ izzek.ks fuoMko;kP;k lapkydkaph ik+=rk[kkyhy izek.ks jkghy-

¼1½ - - - - - - - - - -

¼2½ R;kus iksVfu;e 9 e/khy rjrwnhizek.ks dkj[kkU;kps dk;Z{ks=krhy R;kus fidfoysyk ml

HkkxkP;k izek.kkr fuoM.kwdh iqohZP;k yxrP;k ikp xkGi gaxkekiSdh rhu xkGi gaxkeke/;s

dkj[kkU;kl ?kky.;kps ca/ku ikGysys vlys ikfgts "

4. According to the petitioners, there has been only a single

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supply of sugarcane during preceding five years of the elections

by respondents No. 6 and, as such, requirement of supply of

sugarcane in three crushing seasons during preceding five

crushing seasons has not been fulfilled and in the process

respondents No. 6 render themselves ineligible to contest

elections as candidates from producer members constituency.

5. The other objections of the petitioners are with respect to

that appeals preferred challenging decisions taken by returning

officer dated 20th May, 2017, have been lodged beyond the

period of limitation of three days. Statutory provision, section

152-A of the Maharashtra Co-operative Societies Act, 1960m

prescribes limitation of three days from the date of rejection of

nomination since some of the appeals have been filed on 24 th

May, 2017. It is further submission in this respect that

intervening holiday i.e. Sunday is inconsequential and does not

arrest running of period of limitation from the date of rejection of

nomination, along with that, even otherwise appeals against

rejection of nominations of respondents No. 6 by returning

officer, are deficient of mandatory requirement of impleading all

the candidates enlisted for election and, as such, decision

thereon is inefficacious and inoperative.

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6. Mr. V. D. Salunke, learned advocate contends that while

respondent No. 5 had produced requisite documents referring to

that there had been no supply of sugarcane thrice during five

crushing seasons preceding elections pursuant to aforesaid bye

law, decision taken by the returning officer could not have been

faulted with. Over and above this, while replying arguments on

behalf of respondents No. 6, he contends that record sufficiently

bears, in some cases, that in spite of sugarcane having been

cultivated, same had not been supplied as required under the

bye law. He submits that appellate authority has committed

patent error in allowing appeals, while those could not have been

considered without delay condonation application, relying on

reported judgments in the cases of "Mathuradas Mohta College of

Science, Nagpur V/s R. T. Borkar and Others" reported in 1997 (2)

Mh.L.J.168 and "Ragho Singh V/s Mohan Singh and others" reported in

2001 AIR SCW 2351. He submits that apart from this flaw in

considering appeals, even otherwise, the appeals were

unsustainable for want of impleading candidates whose

nominations have been held to be valid, relying on a judgment of

this court in writ petition No. 2614 of 1982 along with other

connected writ petitions, and writ petition No.6418 of 1996,

whereunder the court has observed that, while filing appeal

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persons whose nominations were accepted and who remain in

fray ought to have been impleaded in the appeals.

7. Mr. Salunke submits that while basic qualifying eligibility

requirement is not satisfied in the present matters by

respondents No. 6, their candidature could not have been

validated at the appellate stage that too in an appeal, which was

not maintainable, being delayed and for non impleading

necessary parties. He contends that contention on the other side

that elections have reached culminating stages and should not

be intervened, relying on certain judgments, would be a

fallacious opposition for, there have been quite a few judgments

which show that if the facts and circumstances of the case

require and where there is a basic eligibility defect pointed out,

the courts ought to intervene and have intervened in such cases.

He also fairly refers to that there have been certain other

judgments on the other hand, which refer to that court should

observe restraint while deciding challenge causing interlude in

the election process. He submits that decision in "Shri Sant Sadguru

Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and

another V/s State of Maharashtra and others" reported in 2001 (8) SCC 509

has not held sway in deserving cases, where interference is

required when there is patent illegality.

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8. He cites quite a few judgments, particularly in the matter

of "Dalsing Shamsing Rajput V/s State of Maharashtra and Others" reported

in 2006 (3) Mh.L.J. 592 and "Pandurang Hindurao Patil V/s State of

Maharashtra and others" reported in 1984 CTJ 125 and lays emphasis

particularly on paragraph No. 22 thereunder, reading, thus -

" 22. When a petitioner comes to this court under Article 226 of the Constitution challenging a wrong rejection or acceptance of a nomination paper, two courses, in our view, are open to this Court. Firstly, the question to be faced at the very threshold is whether a writ can be issued to a Returning Officer and secondly, if a Returning Officer is amenable to the jurisdiction of this Court under Article 226 on the facts of a given case, whether this Court will exercise its discretion in favour of the petitioner or not. The first question relates to the maintainability of the petition. The second question relates to the exercise or the non exercise of the power under Article 226 on the facts of each case and this must be governed by the well known principles. One of the principles relevant will be that where an election process is challenged, if the order of the Returning Officer, is on the face of it so patently erroneous or without jurisdiction, it will be improper to ask the petitioner to wait till the whole process of election is over and then challenge that order by way of an election dispute under Section 91 of the Act which is a time consuming procedure."

9. He submits that the likely argument on the other side that

bye law does not operate retrospectively and same would not be

applicable in the present case, would not be a proper argument,

for, as on the date, requirement under bye law for contesting

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elections from producer member constituency, is to supply of

sugarcane on three occasions in five crushing seasons period

preceding elections, which having not been satisfied in the

present matters by respondents No. 6, they are ineligible to

contest election and stand disqualified.

10. Mr. Salunke cites judgment of the Supreme Court in the

case of "Pundlik V/s State of Maharashtra and Others" reported in AIR

2005 SC 3746 to state that not in all the cases, delivered in Shri

Sant Sadguru's (supra) case should be applied. From said

judgment it emerges that there is not absolute embargo on

exercise of powers of high court in deserving cases.

11. Aforesaid submissions have been countered by Mr. Deelip

Patil Bankar and Mr. Mukul Kulkarni, learned advocates

appearing on behalf of respondents No. 6 as well as Mr. S. K.

Kadam, learned advocate appearing on behalf of State Election

Commission, contending that the petitions involve lot of disputed

questions, particularly about respondents No. 6 having incurred

ineligibility as also about whether appeals are time barred or for

that matter are not maintainable for want of impleading

necessary parties viz., nominated candidates.

12. It is contended that date of scrutiny had been 20 th May,

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2017. Decision is stated to have been taken about rejection of

candidature of respondents No. 6 by returning officer on 20 th

May, 2017. However, according to election programme list of

validly nominated candidates is displayed on 22 nd May, 2017,

which is the date of their knowledge of rejection of their

nominations.

13. A dispute in this respect has been raised by the petitioners

stating that one of the affidavits in the petitions refer to that as

a matter of fact respondent No. 6 had been present on the date

of scrutiny and had objected to rejection of his nomination.

14. It is contended on behalf of respondents that looking at

the election programme, practically decision could be had with

respondents No. 6 only on 22nd May, 2017. Matter will have to be

viewed in that context. Decision of rejection had been taken on

20th May, 2017 while 21st May, 2017 had been Sunday, a holiday

and list of validly nominated candidates was displayed on 22 nd

May, 2017.

15. The appeals have been filed on 23 rd and 24th May, 2017

and in the circumstances, the appeals cannot be termed as time

barred as period of limitation would start running either from

22nd May, 2017. It is being submitted that the term "within three

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days from the date of rejection" will have to be taken into

account and interpreted giving allowance to the election

programme. Period of limitation referred to under section 152-A

of the Maharashtra Co-operative Societies Act would not have to

be computed technically, Their further contention about

impleading of validly nominated candidates is that election

programme finalizes validly contesting candidates on 26 th May,

2017 and the appeals were filed either on 23 rd or for that matter

on 24th May, 2017. In the circumstances, non reference to the

candidates whose names were published on 22 nd May, 2017 is

not liable to be faulted with applying analogy of judicial

pronouncements relied upon on behalf of petitioner, contending

further that in at least two appeals, nominated candidates were

impleaded as respondents. It is being submitted that even

otherwise petitioners have intervened in the appeals and were

heard and the appeals were decided. As such, no prejudice can

be alleged at least by the petitioners and they are estopped from

making such grievance. It is further contended that other

candidates who have been nominated, have not been before the

court claiming any prejudice to them and the petitioners cannot

hold their brief.

16. So far as bye law No. 28 (2) is concerned, it is vehemently

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contended that the bye law is applicable prospectively which has

received sanction of the concerned authority only on 28 th

October, 2014 and since then five crushing seasons are yet to be

over. In the circumstances, requirement of supply of sugarcane

thrice during preceding five crushing seasons of elections will

have to be properly construed. Respondents No. 6 have

admittedly supplied sugarcane to respondent No. 5 at least once

from 28th October, 2014 and in some cases it is stated that it has

been supplied twice.

17. It is submitted with reference to judgment of this court in

the case of "Suresh Anandrao Choudhari V/s State of Maharashtra"

reported in LAWS (BOM) 2012-2-197 decided on 28th February, 2012

that requirements under the bye laws will be applicable

prospectively and not retrospectively and have emphasized

observations in said decision in paragraphs No. 15, 25 and 26

reading thus -

" 15. The prospectiveness of the amendment is quite natural as for all purposes earlier the share capital was Rs.3,000/- the case of the petitioners would not be within the sweep of amended bye-laws. The amendment to bye-laws always operates prospectively unless made retrospectively. I quite see, by way of General Body Resolution, there is no procedure prescribed for disqualification of a member/petitioner. It is curious, the resolution of General Body of amending the bye-laws, has not been translated into the Act or the Rules or has not been registered, as required under Section 13 (2) of the Societies Act. The Returning officer could not have given a flavour to accept the amended bye-laws to cause oppression to the contesting petitioners, that too, detrimental to

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their legitimate rights to contest the election.

25. The Division bench of Allahabad High Court in the matter of Dudh Utpadak Sahakari Samiti Ltd. Vs. Aayukta/Nibhandhak, Dugdh Sahakari Samitiyan Dugdhashala Vikas, U.F. Lucknow (C.M.W.P.28351:2001)has held, that Registrar has not been given any power to make any amendment in the bye-laws, giving effect to such bye- laws retrospectively. In paragraph 4, it is observed as under,- "4) The core question is whether the amendment can be made with retrospective effect. The members are to participate in the election after expiry of term of the present committee of management. The unamended bye-law No.65 did not provide that a member should have supplied 500 liters of milk in a co-

operative year. The only condition was that such member should have supplied milk for 180 days. If the amendment is given retrospective effect it will deprive the members to cast then votes in the ensuing election of the members and office bearers of the committee of the management..."

These provisions are pari materia to Maharashtra Cooperative Societies Act, 1950

26. In the result, Rule is made absolute with costs. The orders of learned Divisional Commissioner, Aurangabad, dated 23.12.2009 in the appeal and of the Respondent No.3 are quashed and set aside. The orders of Returning Officer dated 28.12.2009 are set aside. The petitioners be permitted to contest the elections of the Karkhana and necessary arrangements in this behalf be made by learned Collector, Aurangabad or by Returning officer/Sub Divisional Officer, Aurangabad, within a time-bound schedule of 2 months from 12th March, 2012. "

18. It is being contended that while amendment to bye laws

received sanction in October, 2014 and has been operative

onwards. Since five years have not been completed as on the

date, respondents No. 6 cannot be said to be ineligible to contest

election for want of compliance of the requirement while

elections have been declared in the interregnum, before expiry

of period for compliance of the requirements. It is contended

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that conditions cannot be made applicable retrospectively for

determining eligibility of the candidates and the appellate

authority in the circumstances has rightly adjudged eligibility

along with difficulties for supply of sugarcane in the past period.

It was beyond the control of respondents No. 6 having regard to

geographical conditions then, as observed by the appellate

authority that it was not only difficult but absolutely not possible

to supply sugarcane during periods referred to in the order of

the appellate authority for the reasons as have been referred to.

It is thus contended that it was impossible for the petitioners to

supply sugarcane for the reasons which have been referred to in

the appellate order as conditions being beyond control. Order

passed by appellate authority is seldom liable to be faulted with.

19. In support of their submissions, they also rely on an order

of division bench of this court in the case of "Yeshwant Khashaba

Dubai V/s Krishna Sahakari Sakhar Karkhana Ltd.," reported in LAWS

(BOM) 1989-2-13 to contend that a member is not expected to

comply with a condition which is impossible of compliance.

20. Learned advocates further refer to a judgment of this court

in the case of "Vinodchandra H. Doshi V/s Echjay Forgings Private Limited"

 reported        in    20042 (4) Bom.C.R. 438 and     point     out     certain





                                          {22}                                wp7356-17

observations thereunder particularly, paragraphs No. 7, 9, 10

and 12, reading thus -

" 7. Dr. Naik, the learned counsel for the petitioners has heavily relied upon two orders of two division benches of this Court. The first order is dated 7th December, 1982 (Chandurkar and Gadgil, JJ.) and the second one is dated 26th July 1996 (Ashok Agarwal and S.S. Nijjar, JJ.). According to Dr. Naik, in view of the aforesaid judgments, the petitioners ought to have been Impleaded as necessary parties in the appeal under Section 152A of the Act and since they were not impleaded, the decision in the said appeal stands vitiated.

7-A. According to Shri Doctor, the learned counsel for the respondent Nos. 1 to 4 and 6, no writ petition under Article 226of the Constitution of India would lie against the order of the appellate authority accepting the nominations of his clients. The learned counsel has heavily relied upon Section 152A of the Act, which categorically puts an end to any further challenge to the orders passed by the appellate authority. Shri Doctor further submits that the decision relied upon by Dr. Naik were in respect of the rejection of the nomination on merits and the learned Judges had not considered the question of maintainability of the petition against the orders passed by the appellate authority under Section 152A, The learned Counsel submits that the Legislature has intended that the orders of the appellate authority under Section 152A concludes the dispute at that end itself and no petition should be entertained against such orders under Article 226 of the Constitution of India which is an extraordinary jurisdiction vested in the High Court to be sparingly exercised. The learned Counsel has very heavily relied upon a later judgment of our division bench (C. Mukerjee, C. J. and Agarwal, J.) in the case of M.P. Lunawat and Anr. v. Rupee Co-operative Bank and Ors., reported in 1989 CTJ 337. The learned counsel submitted that the aforesaid decision to which one of the learned Judges of the earlier

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division bench (Agarwal, J.) was a party, has categorically held as under :--

"The Section 152A of Maharashtra Co-operative Societies Act provides for appeal against rejection of nomination papers, but not against acceptance of nomination papers. Therefore, the petitioners appeal before the Commissioner was not maintainable.

2. We ourselves decline to entertain the writ petition against the acceptance of nomination papers;

3. The point involves disputed question which would require protracted trial on evidence. Secondly, after the elections are over the petitioner has more effective remedy by way of election petition against irregularities materially affecting the results of an election. The writ petition is rejected. (this is the full text of the short order)

9. Now the question of maintainability of the writ petition against the impugned order of the appellate authority is to be considered. Section 152A as amended reads as under :--

"152A. -- (1) Notwithstanding anything contained in this Act or the rules or the bye-laws made thereunder, a person aggrieved by the rejection of nomination of a candidate at the election of a committee of any society other than a society specified by or under Section 73G, may file an appeal to the Registrar within three days of the date of rejection of the nomination. The Registrar shall dispose of such appeal within ten days of the date of receipt of such appeal and the decision of the Registrar in appeal shall be final and no further appeal or revision shall lie against the decision of the Registrar in such appeal. In the case of a society specified by or under Section 73G, an appeal shall lie to the Divisional Commissioner who shall dispose of such appeal within ten days from the date of receipt of such appeal and the decision of the Commissioner in appeal shall be final and no further appeal or revision shall lie against the decision of the Divisional Commissioner in such appeal.

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(2) Notwithstanding anything contained in this Act or the rules or the bye-laws made thereunder, the list of validly nominated candidates shall be subject to the decision of any appeal filed under Sub-section (1) and the period between the date of scrutiny of nomination papers and the last date of the withdrawal of candidatures shall not be less than fifteen days."

It would be crystal clear that no further challenge to the order of the appellate authority is permissible by way of appeal or revision. Articles 226 and 227 of the Constitution of India cannot be reduced to the extended provisions of the Maharashtra Co-operative Societies Act. If the Legislature had contemplated to put an end over the litigation after the appellate order, it will not be proper for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution in the given circumstances and in the facts of the present case. The Legislature has unequivocally provided for finality to the order of the appellate authority under Section 152A of the Act. As held by the Supreme Court the Articles 226 and 227 are not the extension of Section 152A or any other provision of the Act. Further it is the discretion conferred on this Court in the interest of justice and to put right any miscarriage of justice. These Articles do not confer any right on the party. There is nothing in this matter to justify the exercise of my discretionary jurisdiction.

10. I have pointed out from the merits of the case that except a technical plea that the petitioners were not impleaded in the appeal, there is no other substantial challenge to the order of the appellate authority which can be validly sustained. The petitioners have staked their whole case on the above referred orders of the two division benches. It must be remembered that the learned Judges did not record their verdict on the issue of maintainability of the writ petition in view of Section 152A of the Act. Further it was a case where before the High Court in the petitions the petitioners had not impleaded the candidates whose nominations were accepted by the election officer. The learned Judges were of the

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view that the petitioners ought to have impleaded in the petition, the parties whose nominations were accepted as necessary parties. Before me, all the parties have appeared and I have heard one and all the parties. I have also considered and followed the third order of the later third division bench taking a view that no writ petition lies against the acceptance of the nomination for election to the managing committee. In the peculiar facts and circumstances of the present case the petitioners have been fully heard and they had ample opportunity of making out their grievances which according to them they did not have before the appellate authority. Even in their petitions, they have not been able to show how they have been prejudiced or how injustice was done to them by the appellate authority. Except their pining in the petition I do not find any iota of merit in the case.

7. In the present appeals, the High Court appears to have assumed the jurisdiction under Article 227 of the Constitution without referring to the facts of the case warranting the exercise of such a jurisdiction. Extraordinary powers appear to have been exercised in a routine manner as if the power under Articles 227 of the Constitution was the extension of powers conferred upon a litigant under a specified statute. Such an approach and interpretation is unwarranted. By adopting such an approach some High Courts have assumed jurisdiction even in matters to which the legislature had assigned finality under the specified statutes. Liberal assumption of powers without reference to the facts of the case and the corresponding hardship to be suffered by a litigant has unnecessarily burdened the Courts resulting in accumulation of arrears adversely affecting the attention of the Court of the deserving cases pending before it."

21. Learned advocates Mr. Bankar Patil and Mr. Mukul Kulkarni

during the course of submissions have referred to and relied on

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judgment of this court in the case of "Eknath Ashiram Alekar and

Others V/s State of Maharashtra and others" reported in 1989 (3) Bom. C. R.

165 to contend that no prejudice can be said to have been caused

to the petitioners at all. They lay stress on paragraph No. 34 of

the judgment, reading thus -

" 34. It was also contended on behalf of the Interveners that none of the persons from those, who are granted membership on 30-6-1988, are made parties to the petition and in the absence of those persons, no relief can be granted in these petitions. It is true that in both the petitions, none of those affected persons are made parties, but an application was made for intervention on behalf of some of such persons in Writ Petition No. 417 of 1989. That application was granted and intervention by some of the persons was allowed. Not only that, but the arguments advanced on behalf of them were heard by us at the time of hearing of both these writ petitions. Similar question was considered by the Supreme Court in (Prabodh Verms and others V. State of Uttar Pradesh and Others) 4, AIR 1985 SC 167 and it was held on the question of necessary parties that if the persons to be vitally affected, large in number, are not made respondents, the High Court should not proceed with writ petition without insisting on such persons or some of them in representative capacity being made respondents. In view of this ratio laid down by the Supreme Court, in this case, even though the petitioners had failed to make any one of the 3,387 persons as respondents, the fact that some of such of the persons had intervened in the proceedings and were heard cannot be ignored, and as the entire hearing of both the petitions, including the claim of the Interveners, is heard together the basic requirement of notice and opportunity stands satisfied in the present case. "

22. Learned advocates further refer to a recent judgment of

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the Supreme Court in Civil Appeal No. 1629 of 2016 in the case

of "Shaji K. Joseph V/s V. Vishwanath" dated 22nd February, 2016,

which according to them rules that an election process cannot be

interfered with. They particularly put emphasis on paragraphs

No.14 and 16 appearing thereunder, reading, thus -

" 14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.

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16. Thus, in view of the aforestated settled legal position, the High Court should not have interfered with the process of election. We, therefore, set aside the impugned judgment and direct that the result of the election should be published. We are sure that due to interim relief granted by this Court, Respondent no.1 must not have been permitted to contest the election. It would be open to Respondent no.1 to approach the Central Government for referring the dispute, if he thinks it proper to do so. No issue with regard to limitation will be raised if Respondent no.1 initiates an action under Section 5of the Act within four weeks from today."

23. In addition to aforesaid, learned advocates refer to a

division bench judgment of this court in the case of "Pandurang

Laxman Kadam V/s State of Maharashtra" reported in LAWS (BOM) 2015 6

250 and rely on observations thereunder as appearing under

paragraph No. 8, reading, thus -

" 8. The election dispute that was raised by the petitioners falls well within the ambit and scope of Section 91 of the Act. There can be no justification in law for prescribing limitations which in fact had not been legislatively provided by the framers of the law. Any dispute touching the election of the committee or its officers etc is wide enough to take into its ambit all kind of disputes relating to election of the committees of the society where they are relatable to violation of legal provisions like sections, bye-laws or rules or irregularities which patently are not acceptable in a fair election process. Where it is indicated that the provisions of Section 91 are clear in their terms and there is hardly any scope for adding or subtracting explanations of any kind from the language of these provisions."

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24. They submit with reference to aforesaid judgment that

even validity of nominations or otherwise would be a matter of

contest in an election petition and not otherwise, particularly

having regard to Rule 78 of Maharashtra Co-operative Societies

Election Rules.

25. Learned advocate Mr. Kadam, appearing for State Election

Commission subscribes to the submissions advanced on behalf of

respondents No. 6 and additionally refers to that in the election,

save polling, counting and declaration of results, all other stages

have been over long before and in the process lot of

expenditure, efforts and labour have been invested. Officers and

vehicles have been deployed. Printing of ballot papers has also

taken place showing candidature of respondents No. 6 in present

writ petitions. He, therefore, urges the court to dissuade itself

from intercepting the elections on the ground of objection taken

on behalf of the petitioners.

26. The petitioners, are before this court taking exception to

the orders validating nominations of respondents No. 6 at

appellate stage, basically on the ground that respondents No. 6

being ineligible to contest the elections for want of compliance of

requirements of bye law No.28 (2), which according to them, is

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not satisfied by respondents No. 6 in respective writ petitions for

want of supply of sugarcane in three crushing seasons in

preceding five crushing seasons from elections. Whereas,

contentions on behalf of respondents No. 6 is bye law is

prospectively applicable and five years period / five crushing

seasons will be required to be computed from 28 th October, 2014

and onwards. It has further been contended that it has been

impossible for the respondents to supply sugarcane under the

prevailing drought conditions then. It had been impossible for

them to supply sugarcane thrice in preceding five years, as

observed under the order of the appellate authority.

27. It is submitted that the rejection of candidature came to

the fore only on 22nd May, 2017 barring one, wherein it is stated

that some candidate may have knowledge of rejection on the

very same day the. Appeals were filed on 23 rd and 24th May,

2017. There had been intervening holiday and law prescribed

three days time from the date of rejection. Question of limitation

has been raised and contested is a question which is of fact and

law. Its computation upon facts and law will have to be

examined by letting parties to support their cases by giving

opportunity.

                                            {31}                                wp7356-17

 28.      So     far    as     objection   of     maintainability      of    appeal       is

concerned, in two of the cases, it has been stated that

nominated candidates have been impleaded, albeit there is some

dispute in one case, where nominated candidates are stated to

not to have in fact been impleaded. So far as efficacy of appeals,

wherein nominated candidates have not been impleaded is

concerned, it appears that the appeals have been filed before the

date of enlisting of candidates remaining in fray. In the

circumstances, while petitioners were heard, the deficiency may

not be said to affect maintainability of the appeals with all the

rigour as has been submitted on behalf of petitioners, as

petitioners had intervened.

29. Looking at aforesaid it would not be proper for the court to