Shivaji Hanumantrao Hude vs The State Of Maharashtra And ...
2017 Latest Caselaw 1303 Bom

                                                     WP NO.3634 OF 2017

                                
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD


                  WRIT PETITION NO. 3634 OF 2017


           Shivaji Hanumantrao Hude,
           Age 62 years, Occu.Agril.,
           R/o Satala (Bk), Tq. Udgir,
           District: Udgir.

                                        ...PETITIONER
           VERSUS

  1.       The State of Maharashtra,
           Through Principal Secretary,
           Co-operative Department,
           Mantralaya - Mumbai-32

  2.       The District Deputy Registrar,
           Co-operative Societies, Latur,
           Latur, Tq. & District Latur.

  3.       The Returning Officer,
           Agricultural Produce Market Committee,
           Udgir, Tq. & District Udgir.

  4.       The Secretary,
           Agricultural Produce Market Committee,
           Udgir, Tq. & District Udgir.

  5.       Dhanaji Ganyba Jadhav,
           Age Major, Occup. Agri.,
           R/o. Village Tondchir, Tq. Udgir,
           District Latur.

                                        ...RESPONDENTS

                                  ...




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                                                                 WP NO.3634 OF 2017

  Shri M.S.Deshmukh, Adv., h/f Shri S.G.Jadhavar,
  Advocate, for petitioner.
  Shri S.R.Yadav-Lonikar, AGP, for respondent State.
  Shri A.N.Irpatgire, Advocate, for respondent no.4.
  Shri V.D.Hon, Senior Advocate, i/b Shri A.V.Hon, Advocate
  for respondent no.5.
                              ...

                                    CORAM : P.R. BORA, J.

Dated: March 30, 2017

...

PER COURT :-

1. With the consent of the learned Counsel

appearing for the respective parties, the Writ Petition is

heard finally at the admission stage.

2. By filing the present petition, the petitioner has

challenged order dated 28th February, 2017, passed by

respondent no.3 as well as order dated 16th of March,

2017, passed by respondent no.2 whereby he has

confirmed the order passed by respondent no.3.

3. The petitioner had submitted his nomination for

election of the Managing Committee of the Agricultural

Produce Market Committee, Udgir, Taluka Udgir, district

WP NO.3634 OF 2017

Latur (for short, hereinafter referred to as `the APMC

Udgir'), from the `Societies Constituency'. The Returning

Officer ( respondent no.3) rejected the nomination of the

petitioner holding the petitioner disqualified under Rule 41

(2) (ii) of the Maharashtra Agricultural Produce Marketing (

Development and Regulation) Rules, 1967 ( for short

`Rules of 1967'). Against the order so passed by

respondent no.3, rejecting his nomination, petitioner

preferred an appeal to the District Deputy Registrar,

Cooperative Societies, Latur ( respondent no.2), under

Rule 51 of the Rules of 1967. Respondent no.2, after

hearing the parties to the said appeal, rejected the said

appeal vide order dated 16th of March, 2017. Both the

aforesaid orders are questioned in the present petition.

4. The election programme for electing the

Managing Committee members for APMC, Udgir, was

declared on 9th of February, 2017. There are four

different constituencies, namely, (i) Societies'

Constituency, (ii) Gram Panchayats' Constituency, (iii)

Traders' Constituency, and (iv) Hamals' and Women

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Constituency. From the Societies' Constituency, 11

members are to be elected. The present petitioner had

filed his nomination from the said constituency.

5. As provided under Rule 41(2)(ii) of the Rules of

1967, a person, if his main income is not from agriculture

or possesses a trader's, commission agent's, or broker's

license, or has an interest in a joint family or a firm which

has a trader's or a commission agent's or broker's license,

is disqualified from representing the societies constituency.

An objection was raised to the nomination of the petitioner

from the societies constituency under the aforesaid

provision by respondent no.5. The Returning Officer

( respondent no.3) upheld the said objection and rejected

the nomination of the petitioner on 28th February, 2017.

Against the said order, petitioner preferred an appeal

under Rule 51 of the Rules of 1967 before the District

Deputy Registrar, Cooperative Societies, Latur

( respondent no.2) and as mentioned here-in-before, the

said appeal was rejected by respondent no.2 vide order

dated 16th of March, 2017. Aggrieved by the aforesaid

WP NO.3634 OF 2017

two orders, the petitioner has approached this Court.

6. Shri M.S.Deshmukh, learned Counsel appearing

for the petitioner, assailed the impugned orders on several

grounds. Learned Counsel submitted that the impugned

orders have been passed on assumptions, presumptions

and surmises. Learned counsel further submitted that

both the authorities have failed in considering the

documentary evidence brought on record by the petitioner

in its proper perspective. Learned Counsel further

submitted that the authorities have not considered that the

petitioner is not having any license of trading with APMC,

Udgir. Learned Counsel submitted that in the elections of

the APMC, Udgir, held in the year 2011 also, the

nomination of the petitioner was objected to on similar

grounds but the said objection was rejected by the

Returning Officer and the District Deputy Registrar in an

appeal confirmed the said order. Learned Counsel

submitted that, in fact, the earlier decision was binding on

both the authorities and it was not open for them to take

any contrary view. Learned Counsel submitted that both

WP NO.3634 OF 2017

the authorities, however, under some political pressure,

have erroneously held the petitioner disqualified for

contesting the election from the societies' constituency.

Learned counsel submitted that both the authorities have

also failed in appreciating that after family partition, which

took place way back in the year 2007, the petitioner and

his son are residing separately, have their own separate

ration cards and the petitioner is noway concerned with

the business of his son, or daughter-in-law. Learned

Counsel further submitted that at the stage of scrutiny of

the nomination, the Returning Officer was not supposed to

undertake any detailed enquiry, and was expected to rely

upon the documentary evidence placed on re cord by the

petitioner in the form of residence certificate in his favour

from the Gram Sevak of village Panchayat Satala (Bk), and

a certificate from the Secretary, APMC, Udgir, certifying

that there is no trader's license in the name of the

petitioner. In support of the submission so made,

learned Counsel placed his reliance on an order passed by

this Court ( Coram: Sunil P.Deshmukh, J.) on 4th August,

2015, in Writ Petition No.7734/2015. Learned Counsel

WP NO.3634 OF 2017

also cited one another judgment of this Court in the case

of Dhrupadabai Laxmanrao Mhaske vs. Additional

Commissioner and others ( 2015 (5) Bom.C.R.308), and

the judgment of the Division Bench of this Court in the

case of Pruthwiraj Parmeshwarlal Jaiswal and another vs.

Shrungas Shivlal Thakare and others ( 1987 Mh.L.J. 1065).

7. Shri V.D.Hon, learned Senior Counsel,

appearing for respondent no.5, opposed the submissions

made on behalf of the petitioner. Learned Senior Counsel

submitted that the Returning Officer has rightly rejected

the nomination of the petitioner by giving sound reasons

therefor. Learned Senior Counsel further submitted that

the order so passed by the Returning Officer has been

confirmed by the appellate authority and both these

authorities have concurrently held the petitioner

disqualified from contesting the election of APMC, Udgir,

from the societies constituency. Learned Senior Counsel

further submitted that since the process of election has

now reached to its final stage and casting of votes is

scheduled on 2nd of April, 2017, no interference can be

WP NO.3634 OF 2017

caused even if the petitioner may have a very good case.

To support his contention the learned Senior Counsel,

relied upon the judgment of the Honourable Apex Court in

the case of Shaji K.Joseph vs. V.Viswanath & ors in Civil

Appeal No.1629 of 2016, arising out of S.L.P. (Civil)

No.22902/2011, decided on 22nd of February, 2016.

8. Learned Senior Counsel further submitted that,

even on merits, the petitioner does not have any case.

Learned Senior Counsel submitted that from the material

which has come on record during the proceedings before

the authorities below, prima facie, there is reason to

believe that the agriculture is not the main source of

income for the petitioner, and further that, he is interested

in the firm of his son and the daughter-in-law which have

a traders' license. Learned Senior Counsel further

submitted that the evidence which has come on record

indicates that the license, which is in the name of the

petitioner, is still in existence, and has not been cancelled,

or discharged by the petitioner. Learned Senior Counsel

further submitted that, the addresses on the Adhar Card

WP NO.3634 OF 2017

pertaining to the petitioner and his son, show that both are

residing on the same address which leads to a reasonable

inference that there is a joint family and the so called

document of partition is just a camouflage. Learned

Senior Counsel further submitted that the evidence has

also come on record indicating that warehouse license is in

the name of wife of the petitioner and the said fact has not

been clearly denied by the petitioner. Learned Senior

Counsel further submitted that while filing an appeal under

Rule 51 of the Rules of 1967, the petitioner must have

made all the validly nominated candidates as party to the

appeal filed by him before the District Deputy Registrar.

Since the petitioner has not joined them as party to the

appeal filed by him, in fact, the appeal was liable to be

dismissed on the ground of non joining of necessary

parties alone. In support of his said contention, learned

Counsel placed his reliance on the judgment of this Court

in the case of Vijaysingh Krishnarao Parbat vs. Returning

Officer ( 2003(2) Mh.L.J. 485). Learned Senior Counsel,

therefore, prayed for dismissal of the petition.

WP NO.3634 OF 2017

9. Shri S.R.Yadav-Lonikar, learned A.G.P.,

appearing for respondent State, supported the impugned

orders. Shri A.N.Irpatgire, learned Counsel appearing for

respondent no.4, also supported the impugned orders.

Learned A.G.P. brought to my notice that Shri Rishikesh

s/o Baburao Katale, Assistant Returning Officer, has filed

an affidavit, denying therein that he had endorsed any

remark on the copy of memo of appeal filed by the

petitioner, acknowledging receipt of 82 copies of the memo

of appeal. Learned A.G.P. submitted that Shri Katale has

candidly stated that the remark appearing on the memo of

appeal was not made by him and he did not receive 82

copies of the memo of appeal, as contended by the

petitioner.

10. After having considered the submissions

advanced by the learned counsel appearing for the

respective parties, and on perusal of the material on

record, apparently, there appears no scope for any

indulgence by this Court at this stage firstly, for the reason

that the election process pertaining to APMC, Udgir, has

WP NO.3634 OF 2017

not only commenced but is at its final stage. As is

revealing from the record, the casting of votes is

scheduled on 2nd of April, 2017. It is, thus, evident that

the period of less than three days is left for casting of

votes in the election of APMC, Udgir. It has been brought

to my notice by the learned A.G.P. as well as learned

Senior Counsel that the ballot papers for the said election

have already been printed. In the affidavit in reply filed

by respondent also, the said fact has been stated. In the

judgment relied upon by the Senior Counsel Shri V.D. Hon,

in the case of Shaji K.Joseph vs. V.Viswanath & ors (cited

supra), the Honourable Apex Court has clearly laid down

that the process of election shall not be interfered with

after it has commenced. The Honourable Apex Court has

observed that whenever the process of election starts,

normally, the Courts should not interfere with the process

of election for the simple reason that if the process of

election is interfered with by the Court, possibly, no

election would be completed without Court's orders. In

the aforesaid matter, though the Honourable Apex Court

has observed that "prima facie it appears that respondent

WP NO.3634 OF 2017

no.1 could contest the election", restrained itself from

going into the said issue and held that the High Court

should not have interfered with the election after the

process of election had commenced. The Honourable

Apex Court, in the aforesaid judgment, has also referred to

the earlier judgments on the issue in the case of

N.P.Ponnuswami v. The Returning Officer, Namakkal

Constituency, Namakkal, Salem Dist. and others, (AIR

1952 SC 64) and Shri Sant Sadguru Janardan Swami

(Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and

another v. State of Maharashtra and others ( 2001 (8) SCC

509).

11. Having regard to the fact that now less than

three days are left for casting of votes in the election to be

held for the APMC, Udgir, in view of the law laid down by

the Honourable Apex Court in the case of Shaji K.Joseph

vs. V.Viswanath & ors (cited supra), I am not inclined to

cause any interference in the impugned orders at this

stage. Moreover, since the facts relating to candidature of

the petitioner are seriously disputed not only by an

WP NO.3634 OF 2017

individual complainant but also by the Government

authorities, even otherwise this Court could not have gone

into the said disputed questions of facts.

12. For the reasons stated above, the writ petition

is dismissed. It is clarified that this Court has not entered

into the merits of the contentions raised by the parties to

the petition. It would be open for the petitioner, if he so

desires, to raise all of his objections, raised in the present

petition, at appropriate stage in an appropriate proceeding

before appropriate forum. No order as to the costs.

( P. R. BORA ) JUDGE

...

agp/3634-17wp