1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2442 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2442 OF 2011 *** 1. The contention of petitioner is, Respondent no.3 submitted his nomination form from O.B.C. category and it was not accompanied by relevant certificate. Hence, on day of scrutiny i.e. 10th March, 2011 objection was raised and it was rejected. Immediately, thereafter, Respondent No.2 Returning Officer has reviewed that order and permitted Respondent No.3 to correct description of constituency thereby changing his constituency and allowing him to contest for a seat reserved for V.J.M.T. (C) category. This has been done only because nomination paper was accompanied by a certificate showing that he belongs to that reserved category. According to Advocate Mr. Kedar none of the provisions of the Maharashtra Cooperative Societies Act, 1960 or then of 1961 Rules framed thereunder, 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2442 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. clothe Respondent No.2 Returning Officer with such powers. 2. Learned A.G.P. for Respondent No.1, Mr. S. V. Kulkarni for Respondent No.2 and Mr. Karpe for Respondent No.3 are supporting the impugned order. They point out that there is no question of review because simultaneously the correction has been permitted and reliance is being placed upon provisions of section 56-N (4) read with Rule 5-R (4) of Maharashtra Cooperative Societies Rules, 1961 to show the powers available to Returning Officer in this respect. They also contend that if nomination paper of Respondent No.3 is rejected then there is no candidate for election from said category of VJNT and hence this Court should not interfere. 3. They further point out that petitioner is contesting election from open category and as such he has no locus to challenge the acceptance of nomination paper of Respondent 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2442 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. No.3. 4. In reply, Shri Kedar points out that nomination paper could not have been accepted; Respondent No.3 cannot be permitted to contest election and the vacancy needs to be filled in either by holding bye-election or then in accordance with provisions of bylaws. He states that as the Petitioner is contesting the election and he may become part of managing committee, inclusion of such person in managing committee definitely prejudices his case. 5. After hearing respective counsel I am satisfied that as the petitioner had raised the objection to nomination paper of Respondent No.3 and as he is contesting the election and may be part of managing committee he is interested in entire election. Objection to his locus is, therefore, misconceived. 6. Facts clearly show that Returning 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2442 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Officer on 10th March, 2011 i.e. on the day of scrutiny of nomination papers found nomination paper incomplete and, therefore, rejected it. Thereafter, there was demand by other candidates/ members present and also written application by Respondent No.3 to treat his nomination paper as one for the candidate contesting for VJNT (C) category. That request has been granted because the nomination paper was accompanied by a caste certificate supporting the said claim. 7. Perusal of Rule 56-N of 1961 Rules shows that it speaks of presentation of nomination paper and requirement of valid nomination. Its subrule (3) (4) laid down obligation of Returning Officer when nomination paper is tendered to him. Under Sub-rule (3) he has to verify whether nomination paper contains a declaration, specified particulars of scheduled caste and scheduled tribe of which such candidate is a member and then details 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2442 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. of his income and land holding etc. Said provision does not cast upon him an obligation to find out whether said declaration is substantiated by producing necessary document. Under Subrule (4) after presentation of nomination paper, he has to satisfy himself about the names or numbers of candidates and their proposer and seconder appearing in list of voters. There is an exception and nomination papers presented under provisions of subsection 3 of section 73B for reserved constituency are excepted from such satisfaction. Then, proviso to subrule (4) requires Returning Officer to permit correction of any clerical or technical error in nomination paper but then such error has to be in relation to said names or numbers i.e. names and number of either the candidate or his proposer and seconder. It is obvious that this pertains to filing of nomination papers and here that 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2442 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. stage was already over on 9th March, 2011. 8. Rule 56-R deals with scrutiny of nomination papers and on 10th March, 2011 when the above mentioned two inconsistent orders came to be passed the stage was of scrutiny. As per subrule (4) the Returning Officer cannot reject any nomination paper on the ground of any defect which is not of substantial character. Here the Returning Officer had rejected nomination by first order on 10th March, 2011. Returning Officer, therefore, cannot contend that the defect was not of substantial character. Even in later order he has not said that defect was allowed to be corrected because it was not of substantial character. He only mentions the demand of members present and written application by Respondent No.3 and, therefore, has allowed constituency to be altered to bring it in conformity with caste certificate filed along with nomination 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2442 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. paper. Such a course of action is not supported even by Rule 56 (r). 9. It is therefore apparent that the impugned order passed on 10th March, 2011 permitting Respondent No.3 to alter constituency and to permit him to participate in election is unconstitutional and without jurisdiction. Same is accordingly quashed and set aside. 10. Respondent No.3 is free to take recourse to such remedies as are open to him in law, including participation in fresh election as and when the same is announced. Rule is made absolute. No costs. [B.P.DHARMADHIKARI, J.] Dated:08/04/2011. ans/2442