Vivek S/O Sudhakar Wadhai vs Assistant Registrar Of ...
2022 Latest Caselaw 11135 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 5757 OF 2022
                             Vivek Sudhakar Wadhai
                                        Vs.
              Assistant Registrar of Cooperative Societies and others

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. R.D. Karode, Advocate for the Petitioner.
                                  Mr. S.M. Ukey, Addl.G.P. for the Respondent Nos.1 & 2
                                  Mr. Shantanu Ghate, Advocate for respondent No.3

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 20th OCTOBER, 2022.

Heard Mr. Karode, learned counsel for the petitioner, Mr. Ghate, learned counsel for respondent No.3, Mr. Ukey, learned AGP for respondent Nos. 1 and

2. Though the respondent No. 4 is served by private mode, none appears.

2. The petition questions the order dated 20/7/2022 (page 29), passed by respondent No. 1, in an appeal under Section 152(A) of the Maharashtra Co- operative Societies Act, 1960, whereby the rejection of the nomination paper of the respondent No.3 by the Returning Officer, respondent No.2, has been set aside and the name of the respondent No.3, is directed to be included in the list of eligible candidates.

3. Mr. Karode, learned counsel for the petitioner submits that though the Returning Officer by his order 2 44-wp-5757-22.odt

dated 12/07/2022, has accepted the objection filed regarding the nomination of respondent No.3 and rejected the nomination on the ground that the respondent No.3 was a defaulter, the respondent No.1, by the impugned order has set aside the same merely on the basis of inferences and therefore, the said order was clearly not justified as it goes against the very gravamen of provisions of Section 73-CA-1(i)(d) of the Maharashtra Co-operative Societies Act.

4. Mr. Ghate, learned counsel for the respondent No.3 submits that the respondent No.3 was not a defaulter and the communication in that regard placed on record dated 11/07/2022 (page 19) and the reply by the Society before the respondent No.1 dated 18/07/2022 (page 25) would indicate so and even otherwise, no opportunity was afforded before declaring the respondent No.3 as a defaulter. He submits that even otherwise, this Court considering that the process of election has already commenced and what is remaining is the balloting to be held on 13/11/2022, ought not to interfere in the election process, in its writ jurisdiction.

5. The facts indicate that as per the election programme, the nomination was to be filled in between 04/7/2022 to 08/07/2022 (page 16). The scrutiny was to be conducted on 11/07/2022. As per the earlier programme, the balloting was to be done on 07/08/2022, however, the same has been now been postponed to 13/11/2022, as per the revised programme published under the order dated 11/10/2022 by the 3 44-wp-5757-22.odt

Maharashtra State Co-operative Election Authority, Pune, filed along with pursis Stamp No.5/22.

6. On 11/07/2022, the petitioner took an objection that the respondent No.3 was a defaulter of the society and therefore, his nomination be rejected. The Returning Officer / respondent No.2 had called for the factual position from the respondent No.4 society in pursuance to which a communication dated 11/07/2022 was sent by the Manager of the respondent No.4 society (page 19) which stated as under :

"izfr] ek- fuoM.kqd fu.kZ; vf/kdkjh vk;q/k fuekZ.kh deZpkjh lgdkjh ir laLFkk e;kZfnr] panziwj

fo"k; % Fkdhr lHkklnkps ekfgrhckcr-

egksn;] mijksDr fo"k;kps vuq"kaxkus vki.kkl dGfo.;kr ;srs dh] laLFksps lHkkln Jh x.ks'k fnokyw djdkMs vlwu R;kapk lHkkln dz-a 8441 o ys[kk dza- 1129 gk vkgs- R;kauh ;k laLFksdMwu fn- 18-12-2017 yk jDde :i;s 3]00][email protected]&¼v{kjh :i;s rhu yk[k QDr½ dtZ ?ksrys vlwu fnukad 08-07- 2022 yk R;kapsdMs O;ktklg jDde :i;s 4]56][email protected]& dtZ ckdh vkgs- vkf.k R;k dtkZph fdLr :i;s 6][email protected]& njegk olqyh vkgs-

rlsp R;kauh ;k laLFksdMwu fn- 11-03-2022 yk jDde :i;s 7]00][email protected]& ¼v{kjh :i;s lkr yk[k QDr½ dtZ ?ksrys vlqu fnukad 08-07- 2022 yk R;kapdMs O;ktkklg jDde :i;s 7]06][email protected]& dtZ ckdh vkgs- vkf.k R;k dtkZph fdLr :i;s 8][email protected]& njegk olqyh vkgs-

ojhy lHkkln gs laLFksps Fkdhr lHkkln vkgs- gh ekghrh laLFksP;k jsdkWMZ o:u o lHkklnkaps fouarh vtkZuqlkj ns.;kar ;sr vkgs-

P.G. Pimpalkar Manager Ord. Fy. Emp. Co-operative Credit Society Ltd. Dist. Chandrapur"

7. The Returning Officer finding that the communication dated 11/07/2022, from the respondent No.4 - society indicated that the respondent no.3 was a 4 44-wp-5757-22.odt

defaulter by his order dated 12/07/2022, rejected the nomination paper (page 21).

8. Against such rejection, the respondent No.3 filed an appeal under Section 152(A) of the Maharashtra Co-operative Societies Act. In this appeal, the respondent No.4 society, had placed a communication / reply on record dated 18/07/2022 (page 25) which reads as under :

"izfr] ek- lgk;d fuca/kd lgdkjh laLFkk rk- Hknzkorh] ft- panziwj fo"k; % laLFksps lHkkln Jh x.ks'k fnokyw djdkMs] ;kaps dtkZckcr ekfgrh] lanHkZ % vkiys i= dz- tk- dz-a [email protected] fu;[email protected] [email protected] vihy 152&[email protected] [email protected]] fnuakd [email protected]@2022 egksn;] ofjy lanHkkZdhr i=kuqlkj vihykFkhZps mesnokjh vtZ Fkdhr lHkkln vlY;keqGs ukefunsZ'ku vtZ @ i= QsVkG.;kr vkys- rjh lnj laLFksps lHkkln Jh x.ks'k fnokyw djdkMs] R;kapk lHkkln dza- 8441 o ys[kk dza- 1129 gk vkgs- R;kuh ;k laLFksdMwu fnuka 18-12-2017 yk jDde :i;s 5]00]000 v{kjh :i;s lkr yk[k QDr½ dtZ ?ksrys vlwu fnukad 11-07-2022 yk R;kapsdMs O;ktklg jDde :i;s 4]56][email protected]& dtZ ckdh gksrs- vkf.k R;kapsdMs fnukad 11-07-2022 i;Zr laLFksps 26 ekfld gQrs Fkdhr gksr-s Fkdhr dtZkps gQrs jDde :i;s 1]64][email protected]& fnukad 13]07]2-022 yk ikorh dzaekd 9070 uqlkj laLFkk dk;kZy;kr Hkj.kk dsysyh vkgs-

rlsp R;kauh ;k laLFksdMwu fn 11-03-2022 yk jDde :i;s 7]00][email protected]& ¼v{kjh :i;s lkr yk[k QDr½ dtZ ?ksrys gksrs- fnukad 11-07- 2022 yk R;kapsdMs O;ktklg jDde :i;s 7]07][email protected]& dtZ ckdh gksrs- vkf.k Fkdhr dtkZpk gQrk jDde :i;s 8][email protected]& fnukad 13]07]2022 yk ikorh dzekad 9070 uqlkj laLFkk dk;kZ;krk Hkj.kk dsysyh vkgs-

ojhy lHkklnkyk lu 2021&2022 ;k vads+{k.k vgokykr lunh ys[kkiky ;kauh Fkdhr lHkkln Eg.kwu mYys[k dsysyk vkgs- ;k lHkklnkadMwu Fkdhr dtkZph jDde :i;s 1]72][email protected]& ps Fkdhr dtkZps gQrs laLFkk dk;kZy;kr Hkj.kk dsY;keqGs R;kapsdMs laLFksps Fkdhr dtkZps gQrs ckdh ukgh- fnukad 13]07]2022 iklwu Jh x.ks'k fnokyw djdkMs gs laLFksps Fkdhr lHkklnj ukgh- gh ekghr laLFksP;k jsdkWMZ o:u vkiY;k ekfgrhl lfou; lknj P.G. Pimpalkar Manager Ord. Fy. Emp. Co-operative Credit Society Ltd. Dist. Chandrapur"

5 44-wp-5757-22.odt

izfrfyih ek- fuoM.kwd fu.kZ; vf/kdkjh vk;q/k fuekZ.kh deZpkjh lgdkjh ir laLFkk e;kZfnr] panziwj j-ua- 131

9. The above position as is spelt out from the communications dated 11/07/2022 and 18/07/2022, would indicate that as on the last date of filing of the nomination paper i.e. on 08/7/2022, the respondent no.3 was a defaulter. The communication dated 11/07/2022, is specific in this regard, inasmuch as it categorical states, that the respondent No.3 was a defaulter member of the society. The communication dated 18/07/2022 (page 25) in fact substantiates the position that the respondent No.3 was a defaulter of the society in respect of the loan availed on 18/12/2017 inasmuch as it categorically states that as on 11/07/2022, there were 26 monthly installments not paid by the respondent No.3 on account of which an amount of Rs.1,64,000/- was due and payable, which was paid on 13/07/2022 under receipt No.9070. Insofar as loan availed on 11/03/2022, it is stated that the respondent No.3 was in default in respect of this loan also and the default was cleared only on 13/07/2022, by paying the installment of Rs.8000/- on 13/07/2022. It is thus apparent that as on the last date of filing of the nomination i.e. on 08/07/2022 the respondent No.3 was in arrears of the installments as indicated above.

10. The provisions of Section 73-CA(1)(i)(d) of the Maharashtra Co-operative Societies Act provide that 6 44-wp-5757-22.odt

in the case of a non-agricultural credit society a member who defaults the payment of an installment of the loan granted, would be a defaulter of the society. Unlike Section 73-CA(1)(i)(c)(ii) of Maharashtra Co-operative Societies Act which provide for issuance of notice of demand and payment thereafter, there is no such provision, in 73-CA(1)(i)(d) of the Act, which would indicate that a notice of demand prior to a member being declared as a defaulter is not the requirement of the provision and non payment of the installment results in the member automatically becoming a defaulter.

11. A perusal of the order dated 20/07/2022 (page 29) though takes note of the reply by the respondent No.4 society dated 18/07/2022, it however ignores the admitted position regarding the default on the ground that the respondent No.3 was not given an opportunity to clear off the arrears before being declared a defaulter, which reason, is clearly untenable in law on account of the position as spelt out from Section 73- CA(1)(i)(c)(ii) of Maharashtra Co-operative Societies Act.

12. The contention, that since the election process has already been commenced the petition should be relegated to a remedy of an election petition and this Court should not interfere in writ jurisdiction based upon Vinondchandra H. Doshi and another Vs. M/s Echjyay Forgings Pvt. Ltd. and others reported in 2002(2)Mh.L.J. 898, para 9 and Ashok Ambadasrao Lawand and another Vs. State of Maharashtra and others reported in 1996 7 44-wp-5757-22.odt

CTJ 662 has to be construed in the light of the factual position availing therein. That apart the law does not interdict absolutely the exercise of the extraordinary jurisdiction under Section 226 of the Constitution of India in the case like the present one when the facts availing on record, clearly indicate that the respondent No.3 was a defaulter and therefore not eligible to contest the election at all. There is no reason why, by exercise of the powers under Article 226 of the Constitution of India as vested in this Court, it ought not to be ensured that an ineligible candidate should not enter the fray. Vinondchandra H. Doshi and another Vs. M/s Echjyay Forgings Pvt. Ltd. (supra), was in the facts of the said case, as is indicated by a perusal of paragraph 9 therein and did not lay down a universal rule. Bhaiyyaji Sitaram Kannamwar Vs. Assistant Registrar Co-op. Societies & Ors. reported in 2002(2) ALL MR 762, was a case in which there was a challenge also to the election programme in which context the court has held that interference should not be made.

13. In fact, it would be material to note that by enacting Section 152-A of the Maharashtra Co-operative Societies Act, whereby an appeal against rejection of nomination paper has been provided, the intention of the legislature is manifest, that it intends to permit interference in the process of election so as to ensure that ineligible candidates, do not enter the fray. When the statute itself provides for an appeal against the rejection of nomination paper, there is no reason why this Court 8 44-wp-5757-22.odt

should stay its hand in exercising the jurisdiction under Article 226 of the Constitution of India and specifically so in the present case when the default on the part of the respondent No.3 is glaring and stareing in the face of the record.

14. The judgment of the Hon'ble Full Bench, in Karmaveer Tulshiram Authade Vs. State Election Commission reported in 2021(2) Mh.L.J. 349 is in the context of panchyat elections, which attract, the provisions of Article 243-O(b) of the Constitution of India in which there is a constitutional mandate not to interfere, as against which, in the present case, a specific provision exists under Section 152-A of the Maharashtra Co-operative Societies Act, an appeal which appellate decision, can always be considered in the writ jurisdiction in a case such as the present one.

15. In view of the aforesaid discussion, since the impugned order dated 20/07/2022 (page 29) is based upon an incorrect factual and legal premise, the same cannot be sustained and is hereby quashed and set aside. The petitions is allowed. No costs.

JUDGE

MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:20.10.2022 20:31