=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.71 OF 2008 APPEAL NO.71 OF 2008 APPEAL NO.71 OF 2008 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.8655 OF 2007 NO.8655 OF 2007 NO.8655 OF 2007 Shri Basavraj M. Bagale and another ...Appellants v/s Shri Suresh D. Hasapure and others ...Respondents Mr P.S. Dani i/b Mr Suresh Sabrat for Appellants. Mr Amit Karkhanis for Respondent No.1. Mr C.J. Sawant, Sr.Counsel with Mr V.P. Sawant for Respondent No.4. Mr R.M. Patne, AGP for Respondent No.6. CORAM CORAM CORAM : D.K. DESHMUKH AND R.S. MOHITE JJ. : D.K. DESHMUKH AND R.S. MOHITE JJ. : D.K. DESHMUKH AND R.S. MOHITE JJ. DATE DATE DATE : 24TH APRIL 2009 24TH APRIL 2009 24TH APRIL 2009 =2= ORAL JUDGMENT (PER D.K. DESHMUKH J) :- 1. Admit. By consent of the parties, appeal is heard finally. 2. The facts relevant for deciding this appeal are that the District Central Co-operative Bank Ltd., Solapur is a Co-operative Society registered under the Maharashtra Co-operative Societies Act 1960 and is a specified Co-operative Society within the meaning of section 73-G of that Act. Section 73-B of the said Act provides that on the Managing Committee of every Society, one seat shall be reserved for members belonging to the weaker section. The term ’weaker section’ is not defined by the Act and the Rules but the Government of Maharashtra has issued an Order dated 5th May 2001 which defines the term ’weaker section’ for the purpose of section 73-B of the said Act. The elections to the Managing Committee of specified Society under the Act are held by the Collector of the District. The Collector of District, Solapur issued election programme for electing members of the Managing Committee of the Solapur District Central Co-operative Bank Ltd. According to that election programme, nomination papers =3= were to be filed from 16th May 2005 to 24th May 2005. The respondent No.1 filed his nomination paper for a seat reserved for weaker section on 24th May 2005. According to the election programme declared by the Collector, scrutiny of the nomination papers were to be held on 26th May 2005. At the time of scrutiny, an objection was raised on behalf of the appellants who had also filed their nomination papers for seat reserved for weaker section to the nomination paper of the respondent No.1. The objection was that the respondent No.1 does not belong to weaker section and that the certificate dated 21st May 2005 of the Tahasildar, Solapur produced by him in support of his claim that he belongs to weaker section is obtained by misrepresentation. That objection was overruled by the Returning Officer and the nomination paper of the respondent No.1 was accepted. The nomination papers of other persons who had filed their nominations from the same constituency were rejected and therefore as he was the only validly nominated candidate from the constituency, the respondent No.1 was declared elected unopposed as Director of the District Central Co-operative Bank, Solapur from the constituency reserved for weaker section. The appellants therefore filed election petition before the Additional Commissioner, Pune Division, Pune under section 144-T of that Act challenging the election of respondent No.1 as Director =4= of the District Central Co-operative Bank. The election was challenged on many grounds, one of the grounds was that the respondent No.1 does not belong to weaker section of the society and that he has obtained the Certificate from the Tahasildar, Solapur certifying that he belongs to weaker section of the society by misleading the Tahasildar, Solapur. It appears that thereafter oral and documentary evidence was laid by the parties and on the basis of the evidence, the Additional Commissioner, Pune Division, Pune decided the election petition which was registered as election case No.11 of 2005 by his order dated 15th November 2007. The Additional Commissioner held that the appellants have proved that the respondent No.1 does not belong to economically weaker section of the society and therefore, the Additional Commissioner set aside the election of the respondent No.1 as a member of the Board of Directors of the District Central Co-operative Bank. Feeling aggrieved by that order, writ petition No.8655 of 2007 was filed by the respondent No.1 in this Court challenging the order of the Additional Commissioner setting aside his election. That petition was decided by a learned Single Judge of this Court by order dated 4th march 2008. The learned Single Judge by his order allowed the petition, set aside the order passed by the Additional Commissioner, Pune Division, Pune. The appellants therefore feeling aggrieved by the order of =5= the learned Single Judge are in appeal challenging that order. 3. We have heard the learned counsel appearing for both the sides at length. We have also gone through the record. Section 73-B provides that one seat on the Managing Committee of a Co-operative Society is to be reserved for members of weaker section of the society. The term ’weaker section’ is defined by Order dated 5th May 2001. The provisions contained in that Order in so far as it is relevant for our purpose reads as under :- "1) ’Small farmer’ which expression means an agriculturist who holds and cultivates personally unirrigated land not exceeding two hectors and whose ’off farm income’ i.e. income from sources other than agriculture do not exceed Rupees Thirteen Thousand and Five Hundred per annum; and includes an ’agriculturist’ who cultivates as tenant or a share cropper of such land." . The respondent No.1 was claiming that he belongs to weaker section because he is a small farmer and does not hold land exceeding two hectors and his income from sources other than agriculture does not exceed Rs.13,500/- p.a. In support of his claim that he =6= does not hold land in excess of two hectors and that his income from sources other than agriculture does not exceed Rs.13,500/-, he has produced Certificate issued by the Tahasildar, Solapur dated 21st May 2005. So far as the status of the respondent No.1 as a person belonging to weaker section is concerned, following are the admitted facts on the basis of the material on record :- A) According to the election programme, nomination papers were to be filled in from 16th May 2005 to 24th May 2005. B) The respondent No.1 in his examination-in-chief has stated that for being a person belonging to weaker section, the person must not hold agricultural land in excess of two hectors. C) The respondent No.1 has stated in his examination-in-chief before the Additional Commissioner that on 24th May 2005, he was holding one hector and 20 ares of land at Village Nimbargi and he was holding 0.80 ares of land at Village Barur. The agricultural land held by the =7= respondent No.1 on 24th May 2005 was exactly two hectors. D) He further states in his examination-in-chief that he was originally holding two hectors and 80 ares of land at Village Barur. Out of that land, land admeasuring two hectors 2.08 ares was sold by him by registered sale deed dated 21st May 2005 in favour of one Chandrakant Shankar Shingade. E) In his cross-examination, the respondent No.1 has stated that the land at Barur admeasuring two hectors 88 ares was purchased by him alongwith the well and electric motor connection on 9th February 2005 for a consideration of Rs.3,50,000/- from one Ramesh Kundlik Sutar. F) He has also stated in his cross-examination that he sold the land admeasuring 2 hectors 8 ares from this land admeasuring two hectors 88 ares on 20th May 2005 for consideration of Rs.1,35,000/-. =8= G) In his cross-examination he states that ’at the time of purchase of this land on 9th February 2005, money for purchase of the land was given by his brother who lives with him. But in his cross-examination, he further states that he has not produced any evidence that his brother lives with him or that his brother has any source of income. H) Thus, he has admitted that till 21st May 2005 he was holding land admeasuring 3 hectors 3 ares. . It is thus obvious from the record that after the date from which the nominations could be filed, the respondent No.1 transferred from his holding exactly the area of land to bring down his holding to two hectors. In February 2005, he had purchased land admeasuring two hectors 88 ares for Rs.3,50,000/- and within about three months, he sold bulk of that land retaining with himself only 8 ares of land for Rs.1,35,000/- i.e. at a considerable loss. He has not given any explanation why he was forced to transfer the land at a loss. It was suggested to him during cross-examination that Chandrakant Shankar Shingade to whom the land has been transferred on 21st May 2005 is his driver. That =9= suggestion has been denied by the respondent No.1 but in denying that suggestion he does not deny that he owns a car. 4. It is further pertinent to be noted that the respondent No.1 had admittedly applied for a Certificate with the Tahasildar, Solapur that his income from sources other than agriculture does not exceed Rs.13,500/- p.a. but in that application he did not disclose that on the same day, he has sold bulk of his agricultural land for Rs.1,35,000/-. A person who has received Rs.1,35,000/- as sale proceeds of the land cannot claim on the same day that his income from sources other than agriculture does not exceed Rs.13,500/- p.a. From the material available on record, a conclusion cannot escape that the respondent No.1 has deliberately transferred the land admeasuring 2 hectors 80 ares from his holding on the same day on which he wanted to apply for a Certificate that he belongs to weaker section of the society to bring down his holding to two hectors. What is further pertinent to be noted is that the respondent No.1 has also obtained Certificates from Tahasildar, Solapur that the income of their family for the year 2004-05 is Rs.18,000/- only. Perusal of the Certificate dated 21st May 2005 on the basis of which nomination paper of the respondent No.1 was accepted shows that it certifies that his holding is =10= only 1 hector 20 ares. It excludes from consideration his actual holding because admittedly his holding is 2 hectors and it further certifies that his income apart from income that he gets from this land i.e. 1 hector 20 ares does not exceed Rs.13,500/- p.a. Leaving every other aspect aside, this Certificate is falsified by the fact that on the same day on which the Certificate was issued, the respondent No.1 had received an amount in excess of Rs.1,00,000/- by sale of land other than the land which is mentioned in the Certificate. 5. It is further pertinent to be noted that though the respondent No.1 claims that he is a person whose annual income does not exceed Rs.13,500/-, admits that his wife had purchased house property in Solapur but he says that the money for purchase of that property was provided by his father-in-law, but in his cross-examination, he admits that he has not produced any proof to support his case that the funds were provided by his father-in-law. He admits that he is a member of the Siddheshwar Sahakari Sakhar Karkhana Ltd., which is a Co-operative Society but he says that he does not know whether he cultivated any sugarcane during 2004-05. He also claims that he does not know whether a member of Sahakari Sakhar karkhana has to cultivate sugarcane. It is common knowledge that so far as producer members of Co-operative Sugar Factories are =11= concerned, it is obligatory on them that they cultivate sugarcane. It is obvious that the respondent No.1 has given evasive replies in this regard. 6. Perusal of the order of the Additional Commissioner, Pune Division, Pune shows that he had framed issue No.2 in this regard which reads as under :- "2. Does the Petitioner prove that the Opponent No.2 would not come within the ambit of Economically Weaker Section as specified by Maharashtra Government by their resolution No.CSL/2001/CR20/15C dated 5.5.2001 ?" . The Additional Commissioner in his order has made following observations in so far as the above quoted issue is concerned :- "Now the case record does show that the affidavit executed by the opponent no.2 on 20/5/2005, before the Tahasildar and E.M., Solapur mentions his annual income from all sources as Rs.18,000/- and that there is no other source of income to him. This income, according to the affidavit includes agricultural income earned through the land of his and his family’s ownership. The said =12= affidavit is executed in the office of the Tahasildar, South Solapur in order to obtain an income certificate on 20/5/2005 whereas the Economically Weaker Section Certificate dated 21/5/2005 issued by the Tahasildar, South Solapur and attached as proof to the nomination paper, in terms of the Government Notification dated 5/5/2001 mentioned above, shows his annual income is not more than Rs.13,500/- and it specifically says that the opponent no.2 holds 1H. 20A. jirayat land at Nimbargi, Taluka South Solapur. Thus there is a noticeable discrepancy regarding the annual income in both these documents, separated only by one day. . In his cross-examination recorded on 4/9/2006, the opponent no.2 has admitted that land bearing gat no.90/1/1A admeasuring 3H. 03A. at village Barur was purchased by him on 9/2/2005 from one Ramesh Kundlik Sutar and that he sold 2H. 33A. out of it on 20/5/2005 to one Chandrakant Shankar Shingade, through a registered sale deed. Thus, so far as the agricultural land goes, it is provided conclusively that till afternoon of 21/5/2005 the opponent no.2 was holding more than 2 =13= hectors of dry crop land and that he had concealed his land holding at village Barur, Tal. Solapur. While obtaining the prescribed certificate and to that extent had executed a false affidavit. The VII-XII extract dated 2/6/2005 (Ex.61) i.e. after the scrutiny on 26/5/2006 also shows that opponent holds 2.88+0.15 = 3H. 03A of agricultural land at village Barur, Taluka South Solapur." . The Additional Commissioner further observes thus :- "All in all it can be safely inferred that the opponent no.2 did not come with clean hands before the Tahasildar, south Solapur at the time of obtaining the prescribed Economically Weaker Section Certificate dated 21/5/2005. In that, he did not disclose the full and exact particulars of all the jirayat dry crop lands he held on that day. In fact, he chose to mention that land he held at Village Nimbargi only did not utter a word about the Barur land in the certificate. He on the other hand has admitted that he is a member (producing sugarcane) of the Siddheshwar Sahakari Sakhar Karkhana Ltd., Kumatha, =14= District Solapur. However, he has not provided the details of the sugarcane cultivated by him for the year 2004-05 though asked specifically about it in the cross examination. He also chose not to disclose the properties held in the name of his wife, in the Solapur City area, one bearing Plot B-59, area 156.13 sq.mtrs. from Vivekanandnagar and the other Plot No.38, area 278.70 sq.mtrs. from gat no.332/2, village Majarewadi. The explanation he has given in respect of the purchase of plot no.38 in his cross-examination that it was purchased by his father-in-law for his wife, Surekha, is not supported by a reliable document as well. Moreover, the cross-examination also reveals that plot no.B-59, about which the source of purchase money is not known to the opponent no.2, is held by his wife, Sharayu whereas the plot bearing no.38, discussed earlier is also held by his wife, Surekha. In his cross-examination, he has also admitted that he is the Chairman of Tapaswi Majur Sahakari Sanstha in Solapur but he cannot change the details of the works carried out by the Sanstha during the years 2003-04 and 2004-05. =15= . I therefore hold that the issue no.2, whether the opponent no.2 would not come within the ambit of Economically Weaker Section as specified by Government Resolution dated 5/5/2001, referred to earlier, must be answered in the affirmative, due to the availability of sufficient documentary evidence and his own admissions in the cross-examination showing he could nee fall within the Economically Weaker Section category on the date of filing his nomination paper on 24/5/2005." . It is thus clear that the entire material that was on record shows that the respondent No.1 had obtained the Certificate from the Tahasildar, Solapur certifying that he belongs to weaker section by suppressing facts and material from the Tahasildar, that he transferred his agricultural land just to show that he could claim that he holds land which is not in excess of 2 hectors and the material on record abundantly establishes that by no stretch of imagination it can be said that the income of the respondent No.1 did not exceed Rs.13,500/- p.a. In this background, the learned Single Judge was considering the writ petition filed under Article 226 of the Constitution of India. =16= 7. The learned Single Judge has said that the evidence that was led in relation to the falsity of the material produced by the respondent for procuring the Certificate from the Tahasildar, Solapur is not admissible because amendment application that was given by the appellants for amending the election petition was not allowed by the Additional commissioner. In our opinion, really speaking as oral evidence was allowed to be brought on record, without raising any objection, the learned Single Judge could not have said that the said evidence is to be excluded from consideration. Most of the material that came on record in relation to falsity of Certificate relied on by the respondent has come on record during his cross-examination. In our opinion, even if one ignores the amendment application filed by the appellants, the averments in the original petition cannot be said to be insufficient to enable the appellants to lead evidence in support of his case that the respondent No.1 does not belong to weaker section. Perusal of the election petition, especially paragraph 1 of election petition, shows that the appellants had claimed that alongwith his nomination papers, the respondent No.1 had produced false and illegal documents, that the Certificate produced by the respondent No.1 in support of his claim has been obtained by him by misleading the parties. In our opinion, these pleadings were sufficient to enable to =17= lead evidence in support of his case. Really speaking, the entire evidence in support of his case has come on record during cross-examination of the respondent No.1 himself. It is obvious from the record that the order of the Returning Officer accepting the nomination paper of the respondent No.1 and a further order declaring him as elected unopposed from the constituency of weaker section was patently illegal order and that order was obtained by the respondent No.1 by his machinations of transferring land from holding so that he could claim that he does not hold the land above 2 hectors and suppressing all relevant information from the Tahasildar, Solapur. The result of setting aside the order of the Additional Commissioner would be to restore the order of the Returning Officer. The learned Single Judge therefore in its extraordinary writ jurisdiction under Article 226 of the Constitution of India should have declined to set aside the order of the Additional Commissioner. The Supreme Court has considered this aspect of the matter in its judgment in the case of Gadde Venkateswara Rao v/s Government of Andhra Pradesh and others, reported in AIR 1966 SC 828 in paragraph 17. The observations of the Supreme Court in paragraph 17 are relevant, they read as under :- "17. The result of the discussion may be stated thus: The Primary Health Centre was =18= not permanently located at Dharmajigudem. The representatives of the said village did not com;y with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely the order dated March 7, 1962 and that dated April 18, 1963 were not legally passed, the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under S.72 of the Act to review an order made under S. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963 ? If the High Court had quashed the said order, it would have restored an illegal order, it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, i our view, rightly refused to exercise its extraordinary discretionary =19= power in the circumstances of the case." . In our opinion, therefore, in view of the fact that the order of the Returning Officer accepting the nomination paper of the respondent No.1 was patently illegal. The learned Single Judge should have declined to interfere at the instance of the respondent No.1 with the order of the Additional Commissioner. The High Court does not exercise its jurisdiction under Article 226 of the Constitution of India in favour of a person who does not approach the Court with clean hands. The methods adopted by the respondent No.1 in order to claim that he is a member of weaker section were clearly not correct. In our opinion therefore, he did not deserve interference at the hands of the High Court in his favour in its extraordinary writ jurisdiction. 8. In the result therefore, the appeal succeeds and is allowed, the order of the learned single Judge impugned in this appeal is set aside. The petition filed by the respondent No.1 before the learned Single Judge is dismissed. Rule is discharged in that petition with no order as to costs. Civil application No.55 of 2009 is disposed off. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of =20= the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( R.S. MOHITE J.)