( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5284 OF 2010 1. Dinkar Uttamrao Patil, R/o Indawe, Tq. Sakri, District Dhule. 2. Pundlik Raoji Pawar, R/o Samode, Tq. Sakri, District Dhule. PETITIONERS VERSUS 1. The State of Maharashtra, through Director of Marketing, Maharashtra State, Pune. 2. The District Deputy Registrar, Cooperative Societies, Dhule, District Dhule. 3. The Assistant Registrar, Cooperative Societies/Returning Officer, for the elections of Agricultural Produce Market Committee, Tq. Sakri, District Dhule. 4. Popatrao Kautik Sonawane, R/o Indave, Tq. Sakri, District Dhule. RESPONDENTS ….. Mr. P.D. Bachate, advocate for the petitioners. Mr. D.R. Korade, AGP for the respondents No. 1 to 3. Mr. P.S. Patil, advocate for the respondent No. 4. ….. [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th June, 2010] ( 2 ) ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and with consent of learned counsel for the parties, heard finally. 2. The petitioners challenge acceptance of nomination form of the respondent No. 4 for the contemplated elections of the Agricultural Produce Market Committee, Sakri (District Dhule). The objection raised by the petitioners at the time of scrutiny of the nomination papers is rejected by communication dated 31st May, 2010. The Returning Officer held that since the respondent No. 4's name appears in the voters' list and he has duly complied with the required conditions of filing documents alongwith the nomination paper, the objection cannot be sustained. The communication issued by the respondent No. 3 – Returning Officer is also being challenged by the petitioners. 3. The election programme for the election of ( 3 ) Agricultural Produce Market Committee, Sakri is published on 13th May, 2010. There were eleven (11) posts of Directors from the constituency of Cooperative Societies i.e. Seva Society Matdar Sangh. The respondent No. 4 filed his nomination as a candidate from the said constituency i.e. from the constituency of the Cooperative Societies. The election programme shows that the period for filing nomination forms was between 14th May, 2010 and 4 p.m. Of 28th May, 2010. The scrutiny of the nomination papers was to be conducted on 31st May, 2010 and the list of valid candidates was to be published on 1st June, 2010. The objections were to be decided on or before 7th June, 2010. The appeal was to be decided on 15th June, 2010. The final list of the candidates is to be published on 18th June, 2010 i.e. today. The voting will be on 4th July, 2010. 4. The elections of the Agricultural Produce Market Committee are governed by the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 (for short, “the MAPM Rules of ( 4 ) 1967”). The petitioners' contention is that the Returning Officer did not conduct any summary enquiry while accepting the nomination form of the respondent No. 4 and the objection is not heeded. They submitted that Rule 50 (2) of the MAPM Rules of 1967 is breached by the Returning Officer. The further contention of the petitioners is that the respondent No. 4, in no case, is eligible to contest the elections from the constituency of the Cooperative Societies because he is admittedly working as Secretary of the District Supervisory Cooperative Society. They submitted, therefore, that the respondent No. 4 is a paid servant and is holding office of profit, which dis-entitles him to participate in any elections, particularly in relation to the Cooperative Societies, in view of legal embargo under section 73FF (1) (vi) of the Maharashtra Cooperative Societies Act, 1960 (for short, “the MCS Act”). They would submit that the nomination form of the respondent No. 4 was erroneously and illegally accepted by the Returning Officer and that, their objections were not decided by following due procedure. Hence, they ( 5 ) challenged the action of the Returning Officer and eligibility of the respondent No. 4 to participate as a candidate in the elections of the Agricultural Produce Market Committee, particularly as a candidate from the constituency of Cooperative Societies. 5. Heard learned counsel for the parties and learned A.G.P. 6. Crucial question involved in this petition is whether the respondent No. 4 is disqualified from contesting the elections of the Agricultural Produce Market Committee from constituency of the Cooperative Societies. There is no dispute about the fact that he is an employee of the Cooperative Society and is a paid servant. Needless to say, he holds office of profit. The constituency of the Cooperative Societies is created by virtue of section 13 (1) (a)(i) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (for short, “the MAPM Act of 1963”). Section 13 (1) (a) (I) reads as follows : ( 6 ) “13. Constitution of Market Committees. (1) Subject to the provisions of Sub-section (2), every Market Committee consists of the following members, namely :- (a) fifteen agriculturists residing in the market area (being persons whose names appear in the voter's list for the concerned constituency and who are not less than twenty one years of age on the date specified, from time to time, by the Collector or the District Deputy Registrar, as the case may be, in this behalf), as specified below :- (i) eleven (of which, two shall be women, one shall be a person belonging to Other Backward Classes and one shall be a person belonging to De-notified Tribes (Vimukta Jatis) or Nomadic Tribes) shall be elected by members of the Managing ( 7 ) Committees of the Agricultural Credit Societies and Multi-purpose Cooperative Societies (within the meaning of the Maharashtra Co-operative Societies Act, 1960 and the rules made thereunder), functioning in the market area; Provided that, where the market Committee is situated in Tribal areas, one person belonging to the Scheduled Tribes shall be elected in place of the election of the person belonging to the De-notified Tribes (Vimukta Jatis) or Nomadic Tribes as aforesaid.” Perusal of Section 13 (1) (a) (i) purports to show that the eleven (11) candidates required to be elected must be qualified being elected by the members of the Managing Committee of the Agricultural Credit Societies and Multi-purpose Co-operative Societies functioning in the relevant area of the Market Committee. Therefore, the candidate must be an agriculturist and must have ( 8 ) been nominated or elected by the members of the Managing Committee of the Agricultural Credit Societies and Multi-purpose Co-operative Societies if he is to answer description as a valid candidate from amongst the eleven (11) posts provided for such candidates. In other words, for valid candidature of the respondent No. 4, it is necessary that he must be one who is elected by members of the Managing Committee of the Agricultural Credit Societies and Multi-purpose Cooperative Societies functioning in the area of the Market Committee. Needless to say, his candidature cannot be considered if he does not file nomination from the constituency of the Cooperative Societies and for such purpose, he should be eligible to be elected by the members of the Managing Committee of the concerned Cooperative Society. 7. The respondent No. 4 is disqualified to participate in any election of any of the Cooperative Society in view of clear mandate of section 73FF (1) (vi) of the Maharashtra Cooperative Societies Act, 1960. The relevant provision reads as follows : ( 9 ) “73FF. Disqualification for membership of committee (1) Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being member of a committee, no person shall be eligible for being appointed, nominated, elected, co-opted or, for being a member of a committee, if he - (i) to (v) ***** (vi) is a salaried employee of any society (other than a society of employees themselves) or holds any office of profit under any society, except when he holds or is appointed to the office of a Managing Director or any other office declared by the State Government by general or special order not to disqualify its holder or is entitled to be or is selected or elected to any reserved seat on the committee of a society under section 73BB.” Perusal of the above provision would make it amply clear that a salaried employee of any Society is not entitled to contest election to become a member of Managing Committee of the Cooperative Society. The disqualification is for being appointed, nominated, ( 10 ) elected, co-opted or for being a member of the Committee. Even otherwise a person who holds any office of profit cannot be permitted to participate in the election process of the Cooperative Society, nor he is eligible to file nomination for any other organization like Agricultural Produce Market Committee, particularly, from the constituency of the Cooperative Societies. There is no special order which uplifts the legal embargo in case of the respondent No. 4. 8. The counsel for the respondent No. 4 would submit that under the MAPM Rules of 1967, the Returning Officer is required to satisfy himself only in regard to the compliance of Rule 45 (2). He would submit that no objection was raised by the petitioners at the time of publication of final list of the voters and, therefore, the respondent No. 4 is eligible because his name appears in the voters' list. It is further contended by the learned counsel that for a valid nomination, it would suffice if the candidate has furnished the certificate of his being an agriculturist. The only ( 11 ) requirement is that he must be a voter whose name appears in the voters' list and that he must be an agriculturist. Sub-Rule (3) of Rule 45 provides that the Returning Officer is required to satisfy himself that the candidate is an agriculturist and his name appears in the voters' list. The purport of Rule 45 is restricted to presentation of nomination papers and requirements of valid nomination. The scrutiny of the nominations, is, however, required to be done under Rule 50 which contemplates a summary enquiry, if any, as the Returning Officer may think necessary. Where an objection is raised then the Returning Officer is required to deal with such objection by holding summary enquiry. The objection raised by the petitioners is rejected only for the reason that name of the respondent No. 5 appears in the voters' list and that he has furnished the required documents. The learned counsel for the respondent No. 4 has placed on record a communication dated 06-04-2010 whereby the President of the District Supervisory Cooperative Society Limited, Dhule has allowed the respondent No. 4 to participate in ( 12 ) the election and to canvass during course of the election. The learned counsel would submit that such permission is granted as per relevant Rules. The question is not whether the permission is granted by the President of the District Supervisory Cooperative Society. The real question is whether the respondent No. 4 is legally qualified to put forth his candidature from the constituency of the Cooperative Societies. Had it been a fact that he had participated in any other election, independently, without any concern with the activities of the Cooperative Societies wherein he is working as a paid servant, perhaps a different yardstick could be applied. Since he cannot be elected by the other directors or nominated by the other directors to represent the constituency of the Cooperative Society and that he himself is not a director of the Cooperative Society, he cannot file his nomination. The law, particularly section 73FF (1) (vi) of the Maharashtra Cooperative Societies Act bars his candidature. He is ineligible to participate in such elections. ( 13 ) 9. The learned counsel for the respondent No. 4 would submit that the respondent No. 4 is a director of the Vividh Karyakari Seva Sahakari Society Limited (for short, “the VKSS Ltd”) where he has been elected. The Returning Officer did not give such reason nor the respondent No. 4 can become director of the VKSS Ltd in view of the above legal position. This Court, ordinarily, does not intervene during the process of election. Still, however, where it is manifest that acceptance of the candidature of a person is manifestly illegal, the exercise of writ jurisdiction under Article 226 of the Constitution of India is permissible. A Division Bench of this Court in “Dalsing Shamsing Rajput v. State of Maharashtra and others” 2006 (5) Bom. C.R. 691, held that the writ under Article 226 can be issued against authority in an appropriate case where the indulgence of the Court is necessary during the process of election. So also, in “K. Venkatachalam v. A. Swamickan and another” (AIR 1999 S.C. 1723), the Apex Court has expounded the principles governing the jurisdiction of the High Court under Article 226 in such ( 14 ) matters. 10. It is also argued that the petitioners ought to have availed appellate remedy. As stated before, today is the last date of publication of the list of valid candidates and the process is on-going. In such contingency, non-availment of alternate remedy does not create bar in the exercise of writ jurisdiction. The bar for exercising writ jurisdiction, where the alternate remedy is available, is self-imposed restriction. In any appropriate case, this Court will not make much capital of such a bar where indulgence of the Court is necessary in the fact situation of a case. 11. In the result, the petition is allowed. The impugned communication is set aside. The respondent No. 3 is directed to remove name of the respondent No. 4 from the final list of valid candidates and if it is already issued, then to issue appropriate corrigendum in respect of removal of name of the respondent No. 4. No costs. ( 15 ) 12. Copy of this judgement and order, duly authenticated by the Court Shirestedar, be supplied to the parties, at their request. [ V.R. KINGAONKAR ] JUDGE At request of Mr. P.S. Patil, learned counsel for the respondent No. 4, the effect of the above order is stayed only till Tuesday, the 22nd June, 2010. As the election is in the offing, no further extension can be granted. [ V.R. KINGAONKAR ] JUDGE NPJ/wp5284-10