Bombay High Court
Dharmpal Annarao Devshettya vs The State Of Maharashtra And ... on 5 November, 2021
Bench: R. N. Laddha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
931 WRIT PETITION NO.12006 OF 2021
BHAGWANRAO RAMCHANDRARAO PATIL
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. A. N. Irpatgire.
AGP for Respondent No.1/State: Mr. P. S. Patil.
Advocate for Respondent Nos.2 & 3: Mr. V. H. Dighe.
Advocate for Respondent No.4: Mr. N. B. Khandare.
Advocate for Respondent No.5: Mr. S. V. Advant.
...
932 WRIT PETITION (STAMP) NO.29584 OF 2021
BHAIDAS DHANRAJ LANDAGE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. Rahul S. Pawar.
AGP for Respondent Nos.1, 2, 4 & 5: Mr. A. V. Deshmukh.
Advocate for Respondent No.3 : Mr. S. K. Kadam.
...
937 WRIT PETITION (STAMP) NO.29905 OF 2021
DHARMPAL ANNARAO DEVSHETTE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mr. V. D. Sapkal (Senior Counsel)
i/b Dr.Tawshikar Swapnil D.
AGP for Respondent No.1-State : Mr. S. S. Dande.
Advocate for Respondent Nos. 2 & 7 : Mr. S. V. Advant.
Advocate for Respondent Nos.3 & 8: Mr. S. K. Kadam.
Advocate for Respondent No.6: Mr. V. S. Kakade.
...
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944 WRIT PETITION NO.12017 OF 2021
BHARAT TUKARAM CHAMLE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mr. A. N. Irpatgire.
AGP for Respondent No.1-State : Mr. P. S. Patil.
Advocate for Respondent Nos.2 & 3: Mr. S. K. Kadam.
Advocate for Respondent No.4: Mr. N. B. Khandare.
...
945 WRIT PETITION NO.12018 OF 2021
BABURAO HANMANTRAO KHANDADE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr.Mahesh Deshmukh h/f
Mr. U.L. Momale.
AGP for Respondent No.1-State : Mr. P. S. Patil.
Advocate for Respondent No.2: Mr. S. K. Kadam.
Advocate for Respondent No.3: Mr. D. J. Choudhary.
...
946 WRIT PETITION NO.12159 OF 2021
PRADEEP RAMRAO DESHMUKH AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. V. D. Sapkal (Senior Counsel)
i/b Mr. Pravin S. Dighe.
AGP for Respondent No.1-State : Mr. S. S. Dande.
Advocate for Respondent Nos.2 & 3 : Mr. S. K. Kadam.
Advocate for Respondent No.4: Mr. D. B. Thoke.
...
947 WRIT PETITION NO.12220 OF 2021
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-3-
PRADEEP RAMRAO DESHMUKH AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. V. D. Sapkal (Senior Counsel)
i/b Mr. Pravin S. Dighe.
AGP for Respondent No.1-State : Mr. S. S. Dande.
Advocate for Respondent Nos.2 & 3: Mr. S. K. Kadam.
Advocate for Respondent No.4: Mr. A. B. Kale.
...
948 WRIT PETITION NO.12221 OF 2021
PRADEEP RAMRAO DESHMUKH AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. V. D. Sapkal (Senior Counsel)
i/b Mr. Pravin S. Dighe.
AGP for Respondent No.1-State : Mr. S. S. Dande.
Advocate for Respondent Nos.2 & 3: Mr. S. K. Kadam.
Advocate for Respondent No.4: Mr. D. B. Thoke.
...
949 WRIT PETITION NO.12222 OF 2021
DHARMPAL ANNARAO DEVSHETTYA
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Dr. Tawshikar Swapnil D.
I/c GP for Respondent No.1-State : Mr. D. R. Kale.
Advocate for Respondent Nos.3 & 5: Mr. S. K. Kadam.
Advocate for Respondent No.4: Mr. D. J. Choudhary.
...
950 WRIT PETITION (STAMP) NO.29855 OF 2021
NANA PANDURANG PATIL
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
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...
Advocate for Petitioners : Mr. V. D. Hon (Senior Counsel)
i/b Mr. Patil Vinod Prakash.
AGP for Respondent No.1-State : Mr. P. S. Patil.
Advocate for Respondent Nos.2, 3 & 4: Mr. V. H. Dighe.
Advocate for Respondent No.5: Mr. V. D. Salunke.
951 WRIT PETITION (STAMP) NO.29882 OF 2021
DILIP SHRIRAM PATIL
VERSUS
THE DIVISIONAL JOINT REGISTRAR COOPERATIVE
SOCIETIES,NASHIK
...
Advocate for Petitioner : Mr. V. D. Hon (Senior Counsel) i/b
Mr. Hon Ashwin V.
I/c GP for Respondent No.1-State : Mr. D. R. Kale.
Advocate for Respondent No.2: Mr. S. K. Kadam.
...
952 WRIT PETITION (STAMP) NO.29896 OF 2021
MADHURI CHANDRASHEKAR ATTRADE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. K. N. Shermale.
AGP for Respondent Nos.1 & 2 - State : Mr. S. S. Dande.
Advocate for Respondent Nos.3 & 5: Mr. V. H. Dighe.
...
CORAM : R.N.LADDHA, J.
[Vacation Court]
DATE : 05.11.2021
P.C. :
The controversy relates to elections to the
Managing Committee of the Jalgaon and Latur District
Central Co-operative Banks.
2. When the hearing of the petitions commenced,
the learned Counsel for the respondents indicated that they
proposed to raise the preliminary objection. They put the
preliminary objection on the ground that the Maharashtra
Co-operative Societies Act, 1960 is a self-contained Code
under which the petitioners have a specific alternate
remedy and therefore interference by this Court under its
writ jurisdiction is not warranted. The question of law
involved in this batch of petitions is common and therefore,
these petitions are taken up for hearing together. To
appreciate the controversy raised in these petitions, a few
relevant facts in the first petition may be described.
3. The respondent no. 3 Returning Officer
published the election programme of the election to the
Managing Committee of respondent no.5 Bank. As per the
election programme, the nomination forms were to be
submitted between 11/10/2021 and 18/10/2021. The
scrutiny was fixed on 20/10/2021 and final list of the
eligible candidates would be published on 09/11/2021. A
copy of the Election Programme is annexed to the petition
as Exhibit-A. The name of the petitioner, in the capacity of
delegate of Vividh Karyakari Seva Sahakari Society Ltd.
Talegaon (BHO), is included in the Voters List. Govind son
of Arjunrao Biradar, respondent no. 4 herein, has submitted
his nomination paper on 14.10.2021 from Primary
Agricultural Credit Society's Deoni constituency as a
contesting candidate. On 20.10.2021, during scrutiny of the
nomination papers, the petitioner had raised objection to
the nomination paper of respondent no. 4, inter alia,
contending that the respondent no. 4 and his family
members were the directors of the company registered
under the Companies Act, 1956. They were doing the
business of trade and commerce and thus had substantial
interest in the company and therefore, by virtue of Section
10A of Banking Regulation Act, 1949, respondent no.4
attracted disqualification for becoming a member of the
Managing Committee of the respondent Bank. The
returning Officer/ Respondent no. 3 rejected the objection
raised by the petitioner and accepted the nomination paper
of respondent no. 4 by the impugned Order dated
21.10.2021.
4. Aggrieved by the aforesaid Order of respondent
no. 3 the petitioner filed the present Writ Petition before
this Court. By way of interim relief, the petitioner is also
seeking stay to the execution, implementation and
operation of the impugned Order dated 21.10.2021. In
some of the petitions, it is the grievance of the petitioners
that their nomination forms were rejected and in some of
the petitions the objections raised by them to the
nomination of respondents were rejected resulting in
acceptance of the nominations of the respondents and in
one petition prayer is made to add the petitioner's name in
the Voters List.
5. I have heard the learned Counsel for the
petitioners, learned counsel for respondents - Returning
Officers as also the learned Additional Government Pleader
and learned Counsel for contesting parties.
6. The learned Counsel for the petitioners raised
several contentions. According to them, the respondent
Returning Officers have committed an error of law while
scrutinizing the nomination papers and since the
respondent Returning Officers have acted contrary to law
their decisions deserve interference and if interim relief as
prayed for is not granted, serious prejudice will be caused to
the interest of the people at large. According to them the
Hon'ble Supreme Court in the case of N.P. Ponnuswami Vs
Returning Officer, AIR 1952 S.C. 64 nowhere deals with the
election to the Co-operative Banks. In their view, in such
cases, the only remedy available to the petitioners is to
invoke Article 226/227 of the Constitution of India.
7. On the other hand, the learned Counsel for the
contesting respondents, learned counsel for the respondent
Returning Officers, as also learned AGP have submitted that
the election process is already set in motion, it has now to
be completed in accordance with the provisions of the
relevant Statute and grant of any interim relief will result in
protracting and interfering in the election process.
According to them the Statute provides alternate remedies
such as election petition and where a right or liability is
created by a Statute which provides a special remedy for
enforcing it, the remedy provided by such Statute only
should be availed of. Learned Counsel also relies on the
Judgment of the Hon'ble Supreme Court in the case of N.P.
Ponnuswami (Supra) to contend that though the Hon'ble
Supreme Court in the aforesaid case did not deal with the
election process of the Co-operative Banks, still the same
principles will apply to the elections to the Co-operative
Banks. Relying on the aforesaid case of N.P.Ponnuswami
(supra), they contended that the High Court under Article
226/227 of the Constitution of India cannot entertain a
Writ Petition assailing the rejection / acceptance of
nomination paper on whatsoever ground.
8. Having given my anxious consideration to the
respective contentions, the question that arises for
consideration is whether the High Court would be justified
in interfering with the election process of such Co-operative
Banks under Article 226 and 227 of the Constitution of
India.
9. Recently a Full Bench of this Court at the
Principal Seat in the case of Karmaveer Tulshiram Autade
and Ors Vs State Election Commission, Mumbai and Ors,
2021 (2) Mh. L.J. 349, has enunciated the law as under:
"53. The common thread that emerges from a
reading of the decisions in N.P. Ponnuswami
(supra), Mohinder Singh Gill (supra) and Ashok
Kumar (supra) is that, in respect of challenge laid
to an electoral process or any step connected
therewith before the result of elections, covered by
Part XV of the Constitution is declared, the door of
the writ jurisdiction of a High Court would stand
closed if any order were sought and rendered
which has the tendency or effect of interrupting or
postponing a reasonable imminent poll. This is
amply clear from our understanding of decisions
of high authority as follows:
(i) Article 226 of the Constitution is pushed out by
Article 329 (b), as held in N. P. Ponnuswami
(supra);
(ii) the jurisdiction of the High Court under Article
226 of the Constitution suffers an eclipse because
of Article 329 (b), as held in Mohinder Singh Gill
(supra); and
(iii) if the petition presented to the Court 'calls in
question an election', the bar of Article 329(b) is
attracted; else it is not [as held in Ashok Kumar
(supra)].
54. In all the aforesaid decisions, provisions of
Part XV of the Constitution together with the
provisions of the Representation of the People Act,
1951 were under consideration. The law laid
down therein admits of no doubt that a petition
under Article 226 of the Constitution would not be
maintainable if it calls in question a step-in
election and such questioning before the Court
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may have the effect of interrupting, obstructing or
protracting the election.
55. Article 243-O is pari materia with Article
329. While Article 329(b) as of necessity would
have to be read with the Representation of the
People Act, 1951, Article 243-O has to be read
with sections 15 and 15-A of the MVP Act. We
have noted above what Sections 15 and 15-A
provide. Applying the reasoning of the Supreme
Court in relation to cases covered by Part XV of
the Constitution, there could be no valid and
justifiable reason for not applying the same
reasoning to cases covered by Part IX of the
Constitution relating to "The Panchayats" in which
Article 243-O and the other Articles limiting the
life of every Panchayat and ordaining periodic
elections to the Panchayats find place. Thus, it
would seem to be an open and shut case for
recording that the writ petitions are not
maintainable. However, the controversy has arisen
in view of the Division Bench decisions in Smt.
Mayaraju Ghavghave (supra) and Sudhakar s/o
Vitthal Misal (supra) wherein views have been
expressed, in contravention to the view of an
earlier Division Bench in Vinod Pandurang
Bharsakade (supra). We may note here that in
Vinod Pandurang Bharsakade (supra), Hon'ble C.
K. Thakker, C.J. speaking for the Division bench
had the occasion to look into all the relevant
authorities and treatises on the point and returned
a finding that the writ petition before the Division
Bench challenging a step in the election was not
maintainable.
And further in paragraph no. 68, it has been
observed that:
"68. For the reasons aforesaid, while agreeing
with the view in Vinod Pandurang Bharsakade
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(Supra), we answer the fundamental question as
formulated in paragraph 27 in the negative. As a
sequel thereto, we answer the questions referred
by the Division Bench in the manner as follows:
(i) Allowing a challenge in a writ petition
to rejection of nomination form to
contest an election and granting the
relief claimed by setting aside such
order of rejection is definitely not a step
to sub-serve the progress of election
and/or facilitate its completion in the
sense enunciated in Mohinder Singh
Gill (Supra) and explained in Ashok
Kumar (Supra) though it may not
always amount to intervention,
obstruction or protraction of the
election;
(ii) Article 243-O (b) of the Constitution of
India is a Bar for entertaining a Writ
Petition under Article 226 of the
Constitution against an Order passed by
the Returning Officer rejecting
nomination paper and such provision
would clearly be attracted whenever a
Writ Petition is presented before a
Court for its consideration; and
(iii) The law laid down in Vinod Pandurang
Bharsakade (Supra) represents the
correct view of law; consequently, we
hold that the decision in Smt. Mayaraju
Ghavghave (Supra) and Sudhakar s/o
Vitthal Missal (Supra) do not lay down
the correct law;
69. The reference is answered accordingly."
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10. The point that has been sought to be canvassed
by the learned Counsel for the petitioners is that in all these
cases the applicability of Articles 226/227 of the
Constitution in relation to the elections to the Gram
Panchayats, was in question. However, in the case on hand,
the applicability of the said Articles 226/227 in relation to
an election to a Co-operative Bank is required to be decided.
Therefore, the principles enunciated in the cases cited above
would not be applicable to the present case because there is
a bar under Article 243-O of the Constitution of India in the
cases of Grampanchyats etc.
11. This argument is prima facie unacceptable
because the Village Panchayat Act also contains a provision
for filing an Election Petition which is in pari materia with
the provision contained in the Maharashtra Co-operative
Societies Act, 1960, by which a right or liability is created
by a Statute which provides a special remedy for enforcing
it, and therefore, the remedy provided by such special
Statute only should be availed of. The question of
prohibition contained in Article 243 of the Constitution was
used as an additional ground to repeal the contention of the
Petitioners in Karmaveer (supra) along with the specific
provision contained in the Village Panchyat Act, providing
for the remedy of an Election Petition. Therefore, in my
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view, the principles enunciated in the case of Karmaveer
(Supra) would fully apply to the present case.
12. It has always been recognised that the elections
should be concluded as early as possible according to the
time line. All controversial questions and all issues arising
out of the elections should be redressed by resorting to the
appropriate remedy made in the relevant particular Statute.
The right to vote and stand for election to the office of
Managing Committee of the respondent banks is a creature
of the Statute, that is, the Maharashtra Co-operative
Societies Act, 1960 and it must be subject to limitations
imposed by it. Therefore, the election process to the office
of Managing Committee could be challenged only in
accordance with the procedure prescribed by that Act and in
no other way. It is also well settled principle of law that
where there is an appropriate and efficacious remedy
available, the Court should keep its hands off, more so
where there is a statutorily prescribed remedy which is
almost spelt out in a mandatory form. The same is the case
in all these writ petitions.
13. Moreover, in all these writ petitions disputed
questions of facts are involved which would require
investigation and enquiry inasmuch as the parties herein are
questioning the correctness of the documents relied upon by
their opponents.
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14. In the circumstances, I am not inclined to
entertain these writ petitions. The petitioners are at liberty
to file an election petition or such other proceedings as are
permissible in law. In that event, all contentions are kept
open. Accordingly, all these writ petitions are disposed of.
R.N.LADDHA, J.
DDC
