(1) W.P. Nos. 251 & 257 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 251 OF 2011 WITH WRIT PETITION NO. 257 OF 2011 WRIT PETITION NO. 251 OF 2011 Manchak s/o. Shahaji Pawar, Age : 42 years, Occupation : Agriculture, R/o. Kaudgaon, Taluka : Kaij, District : Beed. .. Petitioner. versus 1. The State of Maharashtra, Through its Secretary, Cooperation and Textile Department, Mantralaya, Mumbai. 2. The Election Officer, Vividh Karyakari Seva Sahakari Society Ltd., Bansarole, Taluka : Kaij, Dist. : Beed. 3. The Vividh Karyakari Seva Sahakari Society Ltd., Bansarola, Taluka : Kaij, Dist. : Beed, Through its Secretary. 4. Smt. Simadevi Anant Mule, Age : 28 years, Occupation : Agriculture & Household, R/o. Ladegaon, Taluka : Kaij, Dist. : Beed. .. Respondents. (2) W.P. Nos. 251 & 257 of 2011 ....................... WRIT PETITION NO. 257 OF 2011 Manchak s/o. Shahaji Pawar, Age : 42 years, Occupation : Agriculture, R/o. Kaudgaon, Taluka : Kaij, District : Beed. .. Petitioner. versus 1. The State of Maharashtra, Through its Secretary, Cooperation and Textile Department, Mantralaya, Mumbai. 2. The Election Officer, Vividh Karyakari Seva Sahakari Society Ltd., Bansarola, Taluka : Kaij, Dist. : Beed. 3. The Vividh Karyakari Seva Sahakari Society Ltd., Bansarola, Taluka : Kaij, Dist. : Beed, Through its Secretary. 4. Vithal s/o. Sandipan Kshirsagar, Age : 42 years, Occupation : Agriculture, R/o. Ladegaon, Taluka : Kaij, Dist. : Beed. .. Respondents. ............................ (3) W.P. Nos. 251 & 257 of 2011 Mr. D.J. Choudhari, Advocate, for petitioner in both petitions. Mr. D.R. Korde, Assistant Government Pleader, for respondent nos.1 and 2 in W.P. No. 251/2011. Mr. S.K. Tambe, Assistant Government Pleader, for respondent nos.1 and 2 in W.P. No. 257/2011. Mr. N.R. Pawade, Advocate, for respondent no.3 in both petitions. Mr. V.D. Salunke, Advocate, for respondent no.4 in both petitions. **************** CORAM : B.P. DHARMADHIKARI, J. DATE : 2ND FEBRUARY 2011 & 3RD FEBRUARY 2011 ORAL JUDGMENT : 1. By these petitions filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order of respondent no.2 / Election Officer, accepting nomination paper of respective respondent no.4 for the purposes of general election of respondent no.3 / Cooperative Society. It is not in dispute that the said Society is registered under the provisions of Maharashtra Cooperative Societies Act, 1960 (For short, (4) W.P. Nos. 251 & 257 of 2011 hereinafter referred to as "Act of 1960"). The respondent no.1 in both the matters is the State of Maharashtra through its Secretary in Cooperation and Textile Department. The respondent no.4 in Writ Petition No. 251/2011 has submitted her nomination for post reserved for woman, while respondent no.4 in Writ Petition No. 257/2011 is contesting election for open post. 2. Looking to the nature of controversy and earlier orders passed, the respective Counsel have been heard finally by making Rule returnable forthwith. 3. Advocate, Shri D.J. Choudhari, appearing for the petitioner, has stated that respondent no.3 is a Notified Society and scrutiny of nomination papers has been conducted on 10-1-2011. In that scrutiny, petitioner raised objection and pointed out that respondent no.4 is defaulter as contemplated by Section 73FF(1)(i) and hence, is not eligible to contest the election. That objection has been rejected after holding payment of loan arrears effected on 8-1-2011 as valid. It is his contention, that 7-1-2011 was the last date prescribed for filing of nomination papers and hence payment made thereafter cannot have the effect of curing the status as defaulter. He has relied upon the judgment delivered by me at Nagpur Bench and (5) W.P. Nos. 251 & 257 of 2011 reported at 2006(3) Bom.C.R. 359, in the case of Ravi Amrutrao Bagde Vs. Commissioner & others. He has further urged that unnecessarily a confusion about the nature of loan availed is being created and he points out loan disbursed to respondent no. 4 is for maintenance of cotton and as per amended loan policy for the year 2009-10, it could have been disbursed up to 31st March 2010. It was repayable by 28-5-2010. 4. Shri V.D. Salunke, learned Counsel appearing for respondent no.4, has raised various objections. His first contention is, the matter must be filed before Division Bench of this Court and the Single Judge has no jurisdiction in this respect. He states that view taken by me at Nagpur and reported at 2007(1) Mh.L.J. 771, in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Cooperation and others, is looked into by another Single Judge in Writ Petition No. 875/2010 at Aurangabad (Hanumant Ramchandra Yadav and others Vs. The State of Maharashtra and others) and vide order dated 23rd June 2010, it has been held that such challenge against the order of Returning Officer / Election Officer must be placed before Division Bench as that order cannot be read as a quasi judicial order. For the same purpose, he has also relied upon order dated 27th August 2002 delivered by the learned Single Judge at Aurangabad in Writ Petition No. 2622/2002 (6) W.P. Nos. 251 & 257 of 2011 (Ishwar Bhagwan Gaikwad and others Vs. The State of Maharashtra & others). 5. His next contention is, the respondent no.3 / Society is not a Notified Society. According to him, it is a simple or general Society and hence election to it is regulated only by its bye-laws. Therefore, the view taken at Aurangabad(supra) is squarely attracted here. To substantiate this contention, he has relied upon the order dated 6th September 2001 issued by the Commissioner for Cooperation and Registrar at Pune. His contention is, whenever share capital of a Notified Society exceeds Rs. 10,00,000/-, total 17 posts of Directors become admissible and election, therefore, has to be for 17 posts. Here, election is only for 13 posts and hence respondent no.4 is not a Notified Society. He has also invited attention to order of appointment of Election Officer, being pressed into service by the petitioner, and dated 27-1-2009, to urge that though District Deputy Registrar at Beed has mentioned that it is issued because of powers delegated to him, the delegation is not brought on record. His contention is, therefore, the respondent no.3 / Society is not a Notified Society at all. 6. He further points out that as petitioner is not contesting from constituencies of respective respondent 4, he (7) W.P. Nos. 251 & 257 of 2011 lacks necessary locus to maintain this writ petition. He has pointed out that only respondent no.4, whose nomination paper is accepted, has been joined as party respodent. According to him, in challenge of such nature, all contesting parties need to be joined and failure to implead all, therefore, must result in dismissal of Writ Petition. 7. On facts, Advocate, Shri Salunke, has contended that the loan availed of by respective respondent no.4 is for crop of sugarcane i.e. under Kisan Credit Facility. That loan therefore, cannot be examined in the light of the “Rabi” policy for the year 2009-10 placed on record by the petitioner and it was not repayable by 28-5-2010. He has relied upon the extract of the register maintained in relation to applications for demand of credit loan to point out that at Serial No.55, it is expressly reflected therein that it was a Kisan Credit Loan. According to him, thus, nature of loan is seriously in dispute and unless and until it is resolved, the contention that the respondent no.4 is a defaulter cannot be accepted. He, therefore, prays for dismissal of Writ Petition even on that ground. According to him, in view of this position, loan was not repayable and it was not necessary to repay it even on 8-1-2011. 8. Lastly, by placing reliance upon provisions of Section (8) W.P. Nos. 251 & 257 of 2011 73FF of the Act of 1960, the learned Counsel has urged that there has to be a notice of demand served upon by respondent no.3 on respective respondent no.4 and if after such demand, loan is not repaid, then only respondent no.4 can be labeled as defaulter. His contention is, in the present facts, it has not been demonstrated that any such notice of demand was served upon respective respondent no.4 at any point of time. He has relied upon the judgment of learned Single Judge of this Court reported at 1995(1) Mah.L.R. 380, in the case of Ramesh Rajaram Patil Vs. The Additional Commissioner, Aurangabad and others, to urge that unless and until there is such demand, the person cannot be labeled as in arrears and hence cannot be treated as disqualified. He has pointed out that this Court has found that disqualification prescribed under Section 73FF(1) of the Act of 1960 is curable one. According to him, had there been such notice to respondent no.4 by respondent no.3, they could have repaid the loan amount and cured the disqualification. For the same purpose, judgment of Full Bench of this Court, reported at 2009(6) Bom.C.R. 277 in the case of Narayan Gujabrao Bhoyar Vs. Yeotmal Zilla Parishad Karmachari Sahakari Path Sanstha Maryadit & another, is also pressed into service. According to him, this judgment also holds that before declaring a person as defaulter, notice of demand must be served upon him and he must be given opportunity to cure the non-payment. (9) W.P. Nos. 251 & 257 of 2011 9. In his reply arguments, Advocate, Shri D.J. Choudhari, has briefly reiterated his stand earlier. He has urged that the judgment of this Court reported in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Cooperation and others (supra), is in relation to ordinary or general or simple Society, while here, the election is of a Notified Society. He relies upon election programme and also upon the appointment of Election Officer for the said purpose. He states that no disputed questions of fact arise and the attention invited to the register (copy annexed) to urge that loan availed was of Kisan Credit, is misconceived. He has invited attention to the right hand part of the very same document to show that the current loan sanctioned for the year 2009-10 is for crop of cotton. He invites attention to other undisputed documents to show this nature of loan. The contention, that all contesting parties must be joined as necessary parties is also urged to be misconceived. The learned Counsel has relied upon the express language of Section 73FF(1) to urge that separate notice for treating a person as defaulter is not contemplated thereunder. He has, therefore, urged that petitions, as filed, deserve to be allowed. 10. The first question to be looked into in the present (10) W.P. Nos. 251 & 257 of 2011 matter is, about the jurisdiction of Single Judge of this Court. I had an occasion to consider this controversy directly in the judgment reported in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Cooperation and others (supra). Perusal of the said judgment, particularly paragraph 7 therein, shows that the question has been examined in relation to a Society which was neither specified nor notified. This Court has found that the Education Officer is appointed under the Act of 1960 and hence, he needs to be treated as public authority. The finding, therefore, recorded is in appropriate cases, writ can be prayed for against him by challenging the orders before Single Judge of the High Court. In view of the discussion undertaken therein detail, it is not necessary for me to again embark upon the same in the present matter. 11. The effort of Advocate, Shri Salunke, is to point out judgment delivered in Writ Petition No. 2622/2002 on 27th August 2002 and to urge that in the present matter, order challenged is not a quasi judicial order. In Writ Petition No. 2622/2002, the order challenged was under Section 88(3-C) of the Bombay Village Panchayats Act, 1958. It was urged there that Bombay Village Panchayats Act does not find place in any of the clauses contained in Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, and therefore, (11) W.P. Nos. 251 & 257 of 2011 Single Judge cannot hear and decide the matter. The other side had contended that the ambit of Rule 18(3) of Chapter XVII cannot be cut down by any other clauses contained in Rule 18. In paragraph 5, this Court has found that if order is passed by quasi-judicial authority in any proceedings under any law, challenge thereto can be heard by a Single Judge. The preliminary objection was, therefore, rejected. It is not in dispute that Chapter XVII, Rule 18, Entry No.12, of the High Court Appellate Side Rules, mentions Maharashtra Cooperative Societies Act, 1960. The said judgment, therefore, has no relevance in the present facts. 12. The other order relied upon is in Writ Petition No. 875/2010. In that order delivered on 23rd June 2010, the challenge was to order of Returning Officer whereby objection of petitioners to list of voters was rejected. The learned Single Judge has noted that the matter can be placed before Single Judge only if impugned order is passed by judicial or quasi judicial authority who is empowered to adjudicate under the concerned statute. The learned Single Judge has found that the expression "concerned statute", as used in Sub-Rule 4 meant such authority must be duly appointed under the provisions of the statute and given power to adjudicate. In paragraph 3, it is noticed that election programme was of a ordinary Society and (12) W.P. Nos. 251 & 257 of 2011 the appointment of Election Officer was not shown to be made under a particular provision of the Act of 1960 or Rules framed thereunder. The appointment is noted to be under bye-laws and at the request of the Society. Because of this, the learned Single Judge has found that order of such Returning Officer cannot be termed as an order rendered by the judicial or quasi judicial authority. The judgment delivered by me and reported in the case of Jagannath Pandharinath Rewaskar and others Vs. Minister of State for Cooperation and others (supra), has been then noticed and it has been found that there, this distinction between type of Society did not fall for consideration there. It is, therefore, apparent that the learned Single Judge has distinguished the view taken by me at Nagpur, by holding that in that judgment, the nature of Society whose elections were being conducted, has not been gone into. The learned Single Judge, therefore, after noting that challenge before him was in relation to a Society which was neither specified nor notified Society, directed the Registry to place the petition before "appropriate Bench" and ordered its removal from his board. 13. The learned Single Judge, therefore, has not laid down any law for uniform application & relevant in this respect in present matter, in the said order dated 23rd June 2010. On the contrary, it has been noticed that the election involved was not of (13) W.P. Nos. 251 & 257 of 2011 a notified or specified Society. 14. Here, the petitioner has along with Civil Application Stamp No. 2998/2011, produced an order dated 27-1-2009 issued by the District Deputy Registrar, Cooperative Societies, Beed, and District Election Officer for Notified Societies. It expressly refers to Rule 56-A(b) of 1961 Rules framed under the Act of 1960. The Election Officer has been appointed by referring to those Rules and after stating that as per powers derived under the said provision, the Election Officer is being appointed. The Election Officer has been directed to conduct election in accordance with provision of the Act of 1960 and also as per Rule 56A of 1961 Rules framed thereunder. This was sought to be challenged by Advocate, Shri Salunke, by contending that he received copy of that Civil Application belatedly and the notification of delegation to District Election Officer for notified Societies as contemplated by Rule 56A(b) is not produced on record. He has also invited attention to the order dated 6th September 2001 specifying number of Directors in a notified Society. The order dated 6th September 2001 is issued by Commissioner for Cooperation and Registrar for Cooperative Societies at Pune and it is on the subject of fixing the number of Directors and number of members of Managing Committee of Agricultural Credit Cooperative Societies. It states that if share (14) W.P. Nos. 251 & 257 of 2011 capital of Society is beyond Rs. 10,00,000/-, such number has to be 17. It is not in dispute before me that share capital of respondent no.3 / Society is much more than Rs. 10,00,000/-. However, that by itself cannot be said to be a material sufficient to rebut the documents produced on record by the petitioner. 15. The election programme dated 1-1-2011 clearly shows that it has been published with approval of District Deputy Registrar as per Rule 56J of 1961 Rules and it is for filling in 13 posts. The communication appointing Election Officer already referred to above and issued on 27-1-2009 clearly shows that powers under Rule 56A(b) in Chapter V-A of the Rules framed under the Act of 1960 are exercised for the said purpose. Procedure directed to be followed & being followed is also of elections of notified society. Thus, the material on record demonstrates that respondent no.3 is a notified Cooperative Society. 16. The judgment of learned Single Judge of this Court dated 23rd June 2010 in Writ Petition No. 875/2010 (supra), in paragraph 3 notes that the election there was not under a particular provision of the Act of 1960 or Rules framed thereunder. It is apparent that had the election been under the Rules framed under the Act of 1960, the learned Single Judge (15) W.P. Nos. 251 & 257 of 2011 was inclined to take other view. In this view of discussion, I find nothing in the said judgment which will enable me to hold that the present Writ Petition also needs to be placed before Division Bench. The objection to jurisdiction of learned Single Judge raised by Advocate, Shri Salunke, therefore, needs to be rejected. 3RD FEBRUARY 2011 17. The objection of learned Counsel for respondent no.4, about locus of the petitioner and about non-joinder of necessary parties can be conveniently considered together. The challenge to locus is on the ground that respondent no.4 in Writ Petition No. 251/2011 is contesting election from altogether different constituency. It is urged that the petitioner, who is contesting election from general or open category is, therefore, not entitled to raise challenge to her election. Similar contention is attempted to be advanced in Writ Petition No. 257/2011, but then, there contesting respondent i.e. respondent no.4 is from the same category or constituency as that of the petitioner. The issue, therefore, needs to be examined only qua election of respondent no.4 in Writ Petition No. 251/2011. Perusal of election programme, as filed, is sufficient to answer it in this respect. The Condition No.11 appearing therein permits all borrower members to vote in elections for other constituencies (16) W.P. Nos. 251 & 257 of 2011 including the constituency for woman (reserved) in which respondent no.4 is contesting. There can be & is no challenge to this stipulation in election programme. It is, therefore, obvious that the objection, as raised, is misconceived. 18. The contention, that all contesting parties must be impleaded as party respondents, is sought to be advanced by relying upon an unreported judgment in Writ Petition No. 2614 of 1982 with connected Writ Petitions (Shri Tukaram Hari Khamkar Vs. Shree Bharat Urban Cooperative Bank Ltd. and others). The Division Bench of this Court on 7th December 1982, has decided all those matters. Perusal of judgment in paragraph 6 reveals that the challenge was to rejection of nomination paper and in that background, contention that other candidates whose nomination papers have been accepted were not necessary parties, has been evaluated. The Hon. Division Bench found that those candidates were vitally interested in the outcome of challenge and hence the petition as filed without joining them was not maintainable. The consideration clearly shows that if rejection was to be set aside by Division Bench, a new candidate was being added to the list of contesting candidates. Thus, prospects of other candidates whose nomination papers were already accepted, were getting adversely affected because of said addition. Here, the effort of the (17) W.P. Nos. 251 & 257 of 2011 petitioner is to remove candidate (respondent no.4) from the list of contesting candidates. As such, there is no question of the interest of any contesting candidate being adversely affected, if he succeeds in the petitions. The judgment of Division Bench, therefore, does not support the argument and the objection as raised. In view of this, I am not in a position to hold that the petition suffers from vice of non-joinder of necessary parties. 19. The other objection raised by the learned Counsel for respondent no.4 is investigation into disputed question of fact. The disputed question, according to the learned Counsel, is the nature of loan availed of by the respective respondent no.4. According to him, it is Kisan Credit, while according to the petitioner, it is crop loan. Perusal of document relied upon by respondent no.4, to allege that it is a Kisan Credit or then a loan for sugarcane crop reveals that it is a page from a register of District Central Cooperative Bank Ltd., Beed. Register perhaps contains details of applications received and loan disbursement to the members along with their signature. The columns on left hand side from Serial Nos. 4 to 10 deal with amount recoverable and amount actually recovered ie about past loan. The columns from Serial Nos.13 to 19 deal with loan to be sanctioned and then last but one column deals with deduction from that loan amount towards previous outstandings. The last column then (18) W.P. Nos. 251 & 257 of 2011 speaks of actual amount to be disbursed as loan. At the end, it also carries signature of the member. The name of respondent no.4 in Writ Petition No. 251/2011 appears at Serial No. 55 in this register. It is obvious that entries on left hand side dealing with earlier loan and its recovery or adjustment are hence not relevant. The words "K.K.", meaning Kisan Credit appear in this left part of the register at the top against the name of member at Serial No.46 and by putting sign ",,” viz. “ditto", the said entry or remark has been carried till last but one entry i.e. Serial No. 58. Against the name at Serial No.59, again words "K.K." are written. On right hand side, where the loan sanctioned is being looked into, these words "K.K." do not appear. On the other hand, the words at the top against Serial No.46, according to the petitioner, show "Ka" i.e. Kapus (cotton) as nature of crop. Again this entry has been carried till Serial No.58 and against Serial No.58, the word in Marathi "Ka" appears. On the strength of this document, respondent no.4 in Writ Petition No. 251/2011 is trying to urge that she has received a loan for growing sugarcane. It is not in dispute between the parties, that if this loan is read as sugarcane loan, then it was not repayable on 28-5-2010. The only question is whether this document is sufficient to indicate that it is a loan for sugarcane and received in year 2010-2011. (19) W.P. Nos. 251 & 257 of 2011 20. The respondent no.4 has not invited attention to right hand side portion of the document and attention was only invited to left hand side portion where words "K.K." have been used. In reply arguments, when Advocate, Shri D.J. Choudhari, pointed out that the entries against columns on right hand side of the document speak and show that the loan disbursed on 26/3/2010 is for