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2021 DIGILAW 663 (BOM)

Dattarao v. State of Maharashtra

2021-03-23

V.K.JADHAV

body2021
JUDGMENT 1. Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2. Being aggrieved by the order passed by Respondent No.3- Returning Officer on 08.03.2021 thereby rejecting the nomination paper of the petitioner and the order dated 18.03.2021 passed by Respondent No.2-appellate authority in Appeal No.3/2021, confirming the same, the petitioner has approached this Court by way of instant petition. 3. The petitioner is the member of Respondent No. 5-Society and Respondent No.5-Society is the member of Respondent No.4-Bank. In terms of the election program for the year 2021-2026 of the Respondent No.4-Bank, the petitioner has submitted his nomination paper on 04.03.2021 and scrutiny of the nomination papers was held on 08.03.2021. The petitioner has submitted his nomination paper for the election of member of the Managing Committee of Respondent No.4-Bank from the constituency of Prathmik Krishi Purvatha Vividh Karyakari Seva Sahakari Society and Dhanya Adhikosh Sahakari Society for Mahur taluka on 04.03.2021. The petitioner has also submitted experience certificate issued by Respondent No.5-Society certifying therein that the petitioner has experience of management of the committee. 4. During the course of scrutiny of nomination papers, on 08.03.2021, Respondent No.3-Returning Officer has rejected the nomination paper of the petitioner on the ground that the candidate should have experience of working on the managing committee of the society, however, in the certificate dated 03.03.2021, issued by Respondent No.5-Society, it is stated that the petitioner has experience of management of the committee. 5. Being aggrieved by the said order dated 08.03.2021, passed by Respondent No.3 - Returning Officer, the petitioner had preferred an appeal bearing No.3/2021 before the Divisional Joint Registrar, Cooperative Societies, Latur Division, Latur, in terms of provisions of Section 152A of the Maharashtra Co-operative Societies Act, 1960 (for short, herein after called as "Act of 1960"). After hearing both the parties, the appellate authority has dismissed the appeal bearing No.3/2021 by an order dated 18.03.2021. Said appeal came to be dismissed mainly on the ground that the petitioner has not placed on record experience certificate of the society to show that the petitioner has experience to work on the managing committee of the society in view of bye-law no.8(9)(2)A-2 of the Respondent-Bank. Hence, this petition. 6. Said appeal came to be dismissed mainly on the ground that the petitioner has not placed on record experience certificate of the society to show that the petitioner has experience to work on the managing committee of the society in view of bye-law no.8(9)(2)A-2 of the Respondent-Bank. Hence, this petition. 6. Mr.Khandare, learned Counsel for the petitioner, submits that both the authorities below have failed to appreciate the said experience certificate issued by Respondent No.5-Society in favour of the petitioner. The said certificate has been issued by Secretary of Respondent No.5-Society certifying therein that the petitioner has experience of five years about the management of the society. The learned Counsel submits that Respondent No. 3-Returning Officer has raised the said objection suo motu and observed that in the certificate issued by Respondent No.5-Society, it is stated that the petitioner has experience of management work of the society, however, it should have been mentioned in the said certificate that the petitioner has experience of working on the managing committee. 7. Learned Counsel Mr.Khandare, appearing for the petitioner, submits that Rule 25 of the Maharashtra Co-operative Societies (Election to Committees) Rules, 2014 (for short, herein after called as "Rules of 2014") speaks about the scrutiny of the nomination papers. The learned Counsel submits that in terms of sub-rule (4) of Rule 25, the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Further, in terms of sub-rule (5) of Rule 25, the Returning Officer shall hold the scrutiny on the date appointed in this behalf under rule 18, and shall not allow any adjournment of the proceedings, except where such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control, provided that, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it, not later than the next day before the publication of list of valid nomination and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. 8. The learned Counsel submits that if there is some confusion created by the contents of the experience certificate issued by Respondent No.5-Society in the mind of the Returning Officer, an opportunity should have been given to the petitioner to rebut it. 8. The learned Counsel submits that if there is some confusion created by the contents of the experience certificate issued by Respondent No.5-Society in the mind of the Returning Officer, an opportunity should have been given to the petitioner to rebut it. The learned Counsel submits that on 08.03.2021, the Respondent-Returning Officer straightway rejected the nomination paper of the petitioner. The learned Counsel submits that the petitioner is discharging his duty in the Co-operative sector for more than fifteen years and he was also a member of the Managing Committee of Wanola Vividh Karyakari Sahakari Society, Mahur, during the years 1992 to 1999, 2003 to 2008 and also acted as member of the managing Committee and delegate of the Taluka Kharedi Vikri Sangh Ltd., Mahur and he was elected as a member of Managing Committee of the said Sangh during the period from 2007 to 2012. The learned Counsel submits that it is stated in the said certificate issued by Respondent No.5-Society that the petitioner has experience about management work of the Society. However, if any confusion is created in the mind of the Returning Officer as to whether the petitioner has experience of the work of managing committee of the Society or the experience to work as managing committee member, the Returning Officer should have given an opportunity to the petitioner to explain the same. However, the Returning Officer has rejected nomination paper of the petitioner on this technical ground. The learned Counsel submits that Respondent No.6 herein is the only candidate in the fray as on today and as such, in terms of the rejection of nomination paper of the petitioner, Respondent No.6 would be declared elected unopposed. The learned Counsel submits that the decision has been taken by the Returning Officer in haste with vested political involvement in procuring the said order. 9. The learned Counsel Mr.S.K.Kadam, appearing for Respondents No.2 and 3, submits that in terms of bye-law no.8(9) (2)A-2 of the Respondent-Bank, the candidate is qualified to be chosen only if he has continuous five years' experience of working on the managing Committee of the Co-operative Society. However, along with nomination paper, the petitioner has submitted experience certificate issued by Respondent-Society certifying therein that he has experience of management work of the society, without specifying therein that the petitioner has experience to work on the managing committee. However, along with nomination paper, the petitioner has submitted experience certificate issued by Respondent-Society certifying therein that he has experience of management work of the society, without specifying therein that the petitioner has experience to work on the managing committee. The learned Counsel submits that Respondent No.3-Returning Officer, has, therefore, rightly rejected nomination paper of the petitioner. The learned Counsel submits that the petitioner was not present when his nomination was rejected and as such, there was no question of giving an opportunity to the petitioner to rebut the objection as raised by the Respondent-Returning Officer. The learned Counsel submits that there is no substance in the writ petition and the same is liable to be dismissed. 10. Mr.Hon, learned Senior Counsel appearing for Respondent No.6, submits that in terms of provisions of Rule 20 (1) of Rules 2014, any member whose name appears in the final list of voters may be nominated as the candidate for the election to fill a seat, if he is qualified to be chosen under the provision of the Act, rules and the bye-laws of concerned society. The learned Senior Counsel submits that in terms of proviso to Rule 21 (2), which speaks about presentation of nomination paper and requirements for valid nominations, the Returning Officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the list of voters and where necessary, any clerical or printing error in the said entries shall be overlooked. The learned Senior Counsel submits that in terms of clause (c) of sub-rule (2) of Rule 25, the Returning Officer shall decide the objection if there has been a failure to comply with any of the provisions of rule 21 or 23. The learned Senior Counsel submits that in view of the same, the Respondent-Returning Officer has taken into consideration contents of the experience certified issued by Respondent No. 5-Society in favour of the petitioner and rightly rejected the nomination paper of the petitioner. The learned Senior Counsel submits that there is no reason to grant time to the petitioner to rebut the objection raised by Respondent No.3-Returning Officer in terms of proviso to sub rule (5) of rule 25. 11. The learned Senior Counsel submits that there is no reason to grant time to the petitioner to rebut the objection raised by Respondent No.3-Returning Officer in terms of proviso to sub rule (5) of rule 25. 11. The learned Senior Counsel submits that petitioner's name was included in the provisional list with the remark that the Society is defaulter and name of the director is forwarded as a delegate and, therefore, name of the society is not included in the voters' list initially. However, the petitioner has filed objection stating therein that he is merely a member of the society and he is not the member of the managing committee. By order dated 03.02.2021, this Court has allowed the said objection petition and thereby given petitioner right to vote holding that he is not the member of the managing committee of the defaulter society. The learned Senior Counsel submits that the petitioner cannot take contrary stand in two different proceedings. 12. The learned Senior Counsel submits that the Respondent-Returning Officer has rightly rejected the nomination paper of the petitioner. There is no substance in the petition and same is liable to be dismissed. 13. The learned Counsel appearing for Respondent No. 5-Society submits that so far as petitioner is concerned, as per the record, the petitioner has experience of management of the society in the capacity as member of the managing committee for more than ten years. The Respondent-Society has, therefore, rightly issued the experience certificate on the basis of the original record. The petitioner was acting member of the managing committee of Respondent No.5-Society for the period 1992 to 1999, 2003 to 2008 and 2010 to 2015. The learned Counsel submits that the petitioner was, however, not elected as member of the managing committee of the Respondent No.5 for the period 2015 to 2018 and 2020-2021 and consequently, he has been recommended as delegate of Respondent No.5-Society being simple member of respondent no.5, since the society was in default. The learned Counsel has pointed out the experience certificate issued to that effect indicating the period for which the petitioner has worked as managing committee member of the society. 14. I have also heard learned AGP appearing for the Respondent-State and learned Counsel appearing for Respondent No.4-Bank. 15. The learned Counsel has pointed out the experience certificate issued to that effect indicating the period for which the petitioner has worked as managing committee member of the society. 14. I have also heard learned AGP appearing for the Respondent-State and learned Counsel appearing for Respondent No.4-Bank. 15. In terms of sub-rule (2) of Rule 25 of the Rules of 2014, the Returning Officer is empowered to examine the nomination papers and shall decide all the 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, which are stated in sub clauses (a), (b), (c) and (d). 16. Rule 25 of the Rules of 2014 is reproduced herein below for ready reference: 25. Scrutiny of nomination papers (1) On the date fixed, for the scrutiny of nomination papers under Rule 18, the candidates, one proposer of each candidate duly authorized in writing by each candidate, may attend at the time and place appointed in this behalf, and there turning Officer shall give or cause to give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered as required by rule 20. No other person shall be allowed to attend the scrutiny of nomination. (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 bye-laws; (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. (3) Nothing contained in clause (c) or (d) of sub-rule (2) shall be deemed to authorize the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper in respect of which no irregularity has been committed. (4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. (5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under rule 18, and shall not allow any adjournment of the proceedings, except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control. Provided that, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it, not later than the next day before the publication of list of valid nomination and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. (6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, he shall record in writing, a brief statement of his reasons for such rejection, and a copy of such statement shall be immediately supplied on demand to the candidate or to the proposer concerned. The copy of such statement shall be sent invariably to the SCEA or District Co-operative Election Officer, as the case may be. 17. In terms of clause (a) of sub-rule (2) of Rule 25, the candidate is disqualified for being chosen to fill the seat by or under the Act, the rules and the bye-laws. It is not disputed that in terms of bye-law no.8(9)(2) A-2 of the Respondent-Bank, the candidate filling the nomination must have an experience to work on the managing committee of the Co-operative Society continuously for the period of five years. 18. I have carefully gone through the impugned order passed by the Respondent-Returning Officer. In order to understand it correctly, I reproduce the said order as it is, which is in vernacular: 19. I have also perused the experience certificate issued by Respondent No.5-Society, which is reproduced herein below: 21. It, thus, appears that there is a thin line between these two wordings. In order to understand it correctly, I reproduce the said order as it is, which is in vernacular: 19. I have also perused the experience certificate issued by Respondent No.5-Society, which is reproduced herein below: 21. It, thus, appears that there is a thin line between these two wordings. In terms of provisions of Section 73 of the Act of1960, the management of every society shall vest in a committee, constituted in accordance with this Act, the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively by this Act, the rules and the bye-laws. The members of the Committee shall be jointly and severally responsible for all the decisions taken by the committee during its term relating to the business of the society. In view of this, the Respondent No.5-Adiwasi Vividh Karyakari Seva Sahakari Society Ltd., Wanola, Tq. Mahur, District Nanded, has issued the experience certificate in favour of the petitioner about management of the Society and managing affairs of the Society, which fulfills requirement of bye-laws of the Respondent-Bank. 22. In terms of sub-rule (2) of Rule 25, the Returning Officer is empowered to make such summary inquiry, if any, as he thinks necessary and in terms of sub-rule (4) of Rule 25, the nomination shall not be rejected on the ground of any defect which is not of a substantial character.. Further, in terms of proviso to sub-rule (5) of Rule 25, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it, not later than the next day before the publication of list of valid nomination. In my considered opinion, the Respondent-Returning Officer at least should have conducted summary inquiry if he has any doubt about the language used in the said experience certificate issued by Respondent No.5-Society in favour of the petitioner and the petitioner should have been granted time to rebut the objection as raised by the Returning Officer. It appears from the endorsement made on the nomination form pertaining to rejection of nomination paper of the petitioner that neither the Returning Officer thought it fit to hold summary inquiry nor to grant time to the petitioner to rebut the said objection. It appears from the endorsement made on the nomination form pertaining to rejection of nomination paper of the petitioner that neither the Returning Officer thought it fit to hold summary inquiry nor to grant time to the petitioner to rebut the said objection. In terms of records of the Society, the petitioner is having experience of working on the managing committee for more than 10 years, though for different periods, however, he has certainly experience to work on the managing committee of Respondent-Society for continuous period of five years on every such occasion. According to me, injustice has been done to the petitioner as the nomination form of the petitioner came to be rejected on the ground of technical objections suo motu raised by the Returning Officer. 23. It is a part of the record that Respondent No.6 herein has not raised any objection for the same and if it was raised by the Returning Officer himself, to my mind, the Returning Officer should have given an opportunity to the petitioner to rebut it or he should have carried summary inquiry to find out the correct facts. 24. It has been vehemently argued by the learned Counsel for the petitioner that on the date of rejection of the nomination, the petitioner and Secretary of Respondent No.5-Society were also present before the Returning Officer along with the relevant record, however, the Respondent-Returning Officer has not looked into said record nor given any opportunity to the petitioner or to the Respondent-Society to explain about the experience certificate. The learned Counsel submits that even the petitioner is ready to file his affidavit on record to that effect. 25. So far as the objection raised by Respondent No.6 that the petitioner has taken contrary stand in two different proceedings is concerned, I do not find any substance in the said submission made on behalf of Respondent No.6 by the learned Senior Counsel. 26. It appears that during the period 2015 to 2018 and 2020 to 2021, the petitioner was not member of the managing committee of Respondent No.5-Society. The petitioner had experience to work on the managing committee of the concerned Co-operative Society for the period 1992-1999, 2003-2008 and 2010-2015. 26. It appears that during the period 2015 to 2018 and 2020 to 2021, the petitioner was not member of the managing committee of Respondent No.5-Society. The petitioner had experience to work on the managing committee of the concerned Co-operative Society for the period 1992-1999, 2003-2008 and 2010-2015. In view of the same, if the Respondent-Society was a defaulter society, then such society can nominate any member excluding member of the managing committee as delegate of Respondent-Society in the ensuing election of the Respondent-Bank. In view of the same, I do not find that the petitioner has taken contrary stand in 2 different proceedings. 27. Thus, considering the entire aspects of the case, in my considered opinion, this is a fit case to interfere in the impugned orders passed by the authorities below. As per the election program, today's date is fixed for withdrawal of nomination papers. In view of the same, even if this petition is allowed, same would not interfere, in any manner, in the ongoing election process. 24th March, 2021 i.e. tomorrow is the date for displaying list of validly nominated candidates. 28. Hence, I proceed to pass the following order: (i) Writ petition is hereby allowed in terms of prayer clause "C" and "D". (ii) Writ Petition is accordingly disposed off. (ii) Rule is made absolute to the above extent with no order as to costs.