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2016 DIGILAW 651 (BOM)

Baghele Narottam Gendlal v. State of Maharashtra

2016-04-02

S.B.SHUKRE

body2016
JUDGMENT : Heard. 2. Rule. 3. Rule made returnable forthwith. Heard finally by consent. 4. By this writ petition, the petitioners have challenged rejection of nomination papers filed by them for contesting election to respondent No.3 Society. The nomination forms have been rejected by respondent No.2 on the ground that the petitioners have not signed affidavit-B. According to the learned Counsel for the petitioners, this is a minor defect, not of any substantial character and, therefore, could have been permitted by respondent No.2 to be removed. He also submits that in any case, the omission to sign affidavit-B was only the clerical or technical error, which could have been allowed to be corrected by respondent No.2. For these submissions, learned Counsel places reliance upon the provisions of Rule 21(2) and rule 25(2)(4)(5) of The Maharashtra Cooperative Societies (Elections to Committee) Rules, 2014 (for short, Co-Op. Rules, 2014) and also the cases of Godha Ram s/o Karam Chand Vs. State of Punjab and others AIR 1966 PUNJAB 33 and Ravi Amrutrao Bagde Vs. Commissioner, Amravati Division & others, 2006 (2) Mh.L.J. 33 . 5. Learned A.G.P. submits that rejection of the nomination papers is correct and requires no interference. Learned Counsel for respondent No.2 as well as respondent No.3 too agree with the submission of learned A.G.P. They point out that signing of affidavit-B is a mandatory requirement and there is no provision under the Maharashtra Cooperative Societies (Elections to Societies) Rules, 2014 permitting a candidate to remove the lacuna of signing the affidavit at the subsequent stage. They also submit that in any case the lacuna cannot be treated as of clerical or technical nature or as not of substantial character. 6. Rule 21 of the Co-Op. Rules, 2014 relates to presentation of nomination paper and requirements for valid nomination. Under proviso to sub-rule (3) there is mandatory requirement that the candidate must submit an affidavit to the effect that he is not disqualified under Section 73CA of the Maharashtra Cooperative Societies Act, 1960 (for short, the Societies Act, 1960). This proviso reads as under:- “Provided that, the Nomination paper shall be accompanied to an affidavit, specified by SCEA, mentioning the candidate is not disqualified under section 73CA of the Act and the attested copies of caste certificates.” 7. Under Rule 25(2) the Returning Officer may reject the nomination on any of the grounds mentioned in clauses (a) to (d). This proviso reads as under:- “Provided that, the Nomination paper shall be accompanied to an affidavit, specified by SCEA, mentioning the candidate is not disqualified under section 73CA of the Act and the attested copies of caste certificates.” 7. Under Rule 25(2) the Returning Officer may reject the nomination on any of the grounds mentioned in clauses (a) to (d). Clause (c) lays down that the nomination paper may be rejected on the ground that there has been a failure to comply with any of the provisions of rule 21 or 23. Sub-rule (2) is reproduced as under:- “(2) The Returning Officer, shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary reject any nomination on any of the following grounds, that is to say : (a) that the candidate is disqualified for being chosen to fill the seat by or under the Act, the rules and the byelaws; (b) that the proposer or seconder is disqualified from subscribing a nomination paper; (c) that there has been a failure to comply with any of the provisions of rule 21 or 23. (d) that the signature of the candidate or the proposer or the seconder on the nomination paper is not genuine.” From the above provisions it is clear, as rightly submitted by learned A.G.P. and learned Counsel for respondent Nos. 2 and 3, that submission of an affidavit to the effect that the candidate has not incurred any disqualification under Section 73CA of the Societies Act, 1960 is mandatory and if this requirement is not fulfilled, the Returning Officer would be within the legal limits of his power to reject the nomination paper. Affidavit-B is in respect of declaration that the candidate has not incurred any disqualification under Section 73CA of the Societies Act, 1960. This affidavit, in this case, has not been signed by the petitioner. If such a mandatory requirement has not been fulfilled by the petitioner, I do not think that any fault could be found with the impugned order dated 05/3/2016. 8. Learned Counsel for the petitioners has referred to me the provisions of sub-rule (4) and prviso to sub-rule (5) of Rule 25 as well as proviso to sub-rule (2) of rule 21 of the Co-Op. 8. Learned Counsel for the petitioners has referred to me the provisions of sub-rule (4) and prviso to sub-rule (5) of Rule 25 as well as proviso to sub-rule (2) of rule 21 of the Co-Op. Rules, 2014. On a careful reading of these provisions of law, one would notice that they relate to removal of minor defects or rebuttal of objections or removal of clerical or technical errors, which had not been termed as of substantial character. 9. Sub-rule (4) of Rule 25 relates to restriction on the power of the Returning Officer to reject any nomination paper. It lays down that the Returning Officer cannot reject the nomination paper on the ground of any defect which is not of a substantial character. Failure to comply with the mandatory requirement in this case, which is of non-signing of affidavit-B, cannot be seen as a defect of minor character. Failure to comply with the mandatory requirement is some thing which goes to the root of the whole matter and, therefore, it is a defect of substantial character. The issue can also be looked at from another angle. Failure to sign the affidavit-B would not be a defect in the nomination paper in the ordinary sense of that term but would be something rendering the nomination paper as incomplete. A defect is something which indicates commission of irregularity in submitting an application or nomination paper. It cannotes shortcoming or imperfection in the application or nomination submitted. It does not include an omission to sign the nomination paper or the application/affidavit. Therefore, in case of an omission to sign the nomination paper or mandatorily required affidavit, the nomination paper would have to be treated as an incomplete nomination paper, which is as good as the nomination paper being not submitted at all. So, sub-rule (4) would not be of any application to the facts of the present case. 10. Proviso to sub-rule (5) of rule 25, lays down that in case of any objection being raised in respect of nomination paper by the Returning Officer or any other person, the candidate concerned may be allowed time to rebut it. This provision affords an opportunity to the concerned candidate to rebut the objection. To rebut means to disprove the objection, or show the objection to be wrong or baseless. It does not include removal of the objection. This provision affords an opportunity to the concerned candidate to rebut the objection. To rebut means to disprove the objection, or show the objection to be wrong or baseless. It does not include removal of the objection. If the objection is on account of some lacuna or absence of signature, the candidate would have been an opportunity under the said proviso to show that there is no lacuna or there is present the signature. However, if the lacuna is indeed there or the signature is indeed absent, the right of rebuttal would not include the right of removal of the objection by making a signature or filling up of the lacuna. In this view, I am fortified by the view taken by this Court in the case of Ravi Amrutrao Bagde (supra). 11. Proviso to sub-rule (2) of Rule 21 lays down that only that clerical or technical error in the nomination paper could be removed which relates to the names or numbers of the candidate, proposer or seconder. This proviso does not permit removal of any error in respect of non-signing of the mandatory affidavit. Therefore, even this provision cannot be pressed into service by the petitioners. 12. Learned Counsel for the petitioner has also relied upon the case of Godha Ram (supra). This case relates to clerical or technical errors and, therefore, in the light what I have already observed, this case law would be of no assistance to the case of the petitioner. 13. In the result, I find no substance in this petition and it deserves to be dismissed. Writ petition stands dismissed. Rule is discharged. No costs.